The proper role of the courts in our system of government has long been the source of considerable controversy. Proponents of "judicial activism" argue that because only the courts are insulated from political pressures, courts should exercise the judicial power broadly in the constitutional context to ensure that legislation is consistent with constitutional norms. Likewise, the argument continues, judicial activism is necessary in the regulatory context to ensure that administrative agencies implement statutory objectives. In contrast, proponents of"judicial restraint" argue that the legislative and executive branches alone should make public policy because only these branches are responsive to the electorate. Because the courts are not politically ac-countable, advocates of judicial restraint contend that broad use of judicial power is contrary to democratic principles. Under this view,the exercise of judicial restraint will prevent courts from infringing on the policymaking functions of the political branches of government.
The environmental law decisions of the United States Supreme Court illustrate the opportunities for, and implications of, the exercise of judicial activism and restraint in the regulatory context.' Beginning in the late 1960s, Congress enacted a series of statutes intended, sometimes at the expense of economic efficiency, to prevent environmental degradation and to force improvements in pollution control technology.'Perceiving administrative reluctance to implement these laws, the Supreme Court in the 1960s and early 1970s exercised its power broadly to ensure the realization of a pro-environment policy. This judicial activism was supported by commentators who argued that environmental interests were underrepresented in the regulatory process and that judicial intervention was necessary to counterbalance the powerful interests favoring industrial development at the expense of environmental protection.'
Richard E. Levy and Robert L. Glicksman,
Judicial Activism and Restraint in the Supreme Court's Environmental Law Decisions,
42 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol42/iss2/2