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Judicial activism

 
Oxford Companion to the US Supreme Court:

Judicial Activism

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The charge that judges are going beyond their appropriate powers and engaging in making law and not merely interpreting it. Against this position is placed the ideal of judicial restraint, which counsels judges to resist the temptation to influence public policy through their decisions and decrees.

Judicial activism is not prisoner to any particular ideological or political viewpoint; it can be conservative as well as liberal. A long period of American history was characterized by conservative judicial activism, by a Supreme Court unwilling to allow the states or Congress to pass legislation that would regulate social or economic affairs. Typically such legislation—laws governing child labor, workers' hours, and so forth—would be invalidated as violations of the Constitution's Commerce Clause or Contracts Clause or of the judicially created doctrine of “liberty of contract” under the Due Process Clause of the Fourteenth Amendment (see Contract, Freedom of). The best‐known example of conservative judicial activism is Lochner v. New York (1905), a case in which the Court invalidated New York's law regulating the hours bakers could work as a violation of “liberty of contract,” a part of the doctrine of substantive due process under the Fourteenth Amendment.

More recently the Court has been subject to criticism that it is engaging in liberal activism. This has been especially the case since the advent of the Warren Court and the revolution that it wrought in civil liberties; but the charge has continued through the Burger Court and into the Rehnquist Court. The argument is that in the name of expanding the “rights” a majority of the justices find agreeable, the Court is twisting the Constitution by disregarding the original meaning of the Due Process and Equal Protection Clauses in order to reach desired results (see Original Intent). Probably the best‐known example of liberal activism is Roe v. Wade (1973), in which the Court struck down restrictive abortion laws as violating the “right to privacy” it had previously found inherent in the Due Process Clause of the Fourteenth Amendment.

What practitioners of liberal and conservative activism have in common is their willingness, at least as perceived by their opponents, to abandon the literal words of the Constitution in pursuit of what the Supreme Court considers to be the just or right or reasonable course of action, whether that be the right of employers to set whatever conditions they see fit for their employees or the right of a woman to abort a fetus. In both instances critics of judicial activism charge that such decisions are properly left under the Constitution to the legislative power of the states.

The distinction between judicial activism and judicial restraint is closely related to the distinction between interpretivism and noninterpretivism and the question of whether it is ever appropriate for judges to import new meaning into the old words of the Constitution.

A campaign against judicial activism became a hallmark of presidencies as ideologically diverse as those of Franklin D. Roosevelt, Richard M. Nixon, and Ronald Reagan.

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See also Constitutional Interpretation; Judicial Self‐Restraint

Bibliography

  • Raoul Berger, Government by Judiciary (1977).
  • Alexander M. Bickel, The Least Dangerous Branch (1962)

— Gary McDowell

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Oxford Dictionary of Politics:

judicial activism\judicial restraint

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Alternative judicial philosophies in the United States. Those who subscribe to judicial restraint contend that the role of judges should be scrupulously limited; it is their job merely to say what the law is, leaving the business of law-making where it properly belongs, with legislators and executives. Under no circumstances, moreover, should judges allow their personal political values and policy agendas to colour their judicial opinions. This view holds that the ‘original intent’ of the authors of the Constitution and its amendments is knowable, and must guide the courts.

For those who adhere to these views, typically in recent years conservative Republicans, the judicial activism of the United States Supreme Court led by Earl Warren between 1953 and 1969 was an outrage. By a series of intensely controversial decisions concerning matters such as segregation in education, legislative reapportionment, and the rights of those suspected of crimes, the Warren Court effectively made public policy in a number of sensitive areas. In so doing, it is charged, the Court violated both the separation of powers and federalism and wilfully inserted its political values into judicial decisions.

Presidents favouring judicial restraint such as Richard Nixon, Ronald Reagan, and George Bush Sr, have attempted to counter these developments by trying to appoint ‘strict constructionists’ to the federal bench, although they did not always distinguish sufficiently between judicial restraint and political conservatism. Strict constructionists believe that in interpreting the Constitution, judges should be bound by ‘original intent’. Taken to extremes this position presents a number of difficulties. It is not at all easy to establish what the intentions of the drafters were and, in any case, the Constitution necessarily offers only an outline, designed more than two centuries ago, for a far smaller and profoundly different society. To cling to the intent of the framers of the Constitution is to deny the possibility of constitutional development; the essential updating that an antique instrument surely requires. And yet if judicial activism were to become rampant the Constitution would ultimately lose all meaning. Some strict constructionists can be surprisingly loose when they want to achieve a politically desired result. This is the serious charge against the Court majority that, by one vote in Bush v. Gore (2000) stopped the vote counts in Florida and thereby handed the presidency to George W. Bush.

— David Mervin/Iain McLean

Barron's Law Dictionary:

Judicial activism

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The theory of judicial behavior that advocates basing decisions not on the judicial precedent but on achieving what the court perceives to be for the public welfare, or what the court determines to be fair and just on the facts before it. Compare judicial restraint.
Wikipedia on Answers.com:

Judicial activism

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Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint.[1]:1 The definition of judicial activism, and which specific decisions are activist, is a controversial political issue, particularly in the United States. The actions of unelected judges whose rulings invalidate the policy decisions made by elected officials has also been described with the political epithet, judicial tyranny. This phrase is generally traced back to a comment in a letter by Thomas Jefferson, referring to the "despotic behaviour" of Federalist federal judges (in particular, John Marshall) who continued to hold office as their political party was fading away.[2] The question of judicial activism is closely related to constitutional interpretation, statutory construction, and separation of powers.

Contents

Origins of the term

Arthur Schlesinger Jr. introduced the term "judicial activism" in a January 1947 Fortune magazine article titled "The Supreme Court: 1947."[3]

“ Schlesinger's article profiled all nine Supreme Court justices on the Court at that time and explained the alliances and divisions among them. The article characterized Justices Black, Douglas, Murphy, and Rutledge as the "Judicial Activists" and Justices Frankfurter, Jackson, and Burton as the "Champions of Self Restraint." Justice Reed and Chief Justice Vinson comprised a middle group. ”

—Keenan D. Kmiec[4]

From the very beginning, the phrase was controversial. An article by Craig Green, An Intellectual History of Judicial Activism, is highly critical of Schlesinger's use of the term. "Schlesinger’s original introduction of judicial activism was doubly blurred: not only did he fail to explain what counts as activism, he also declined to say whether activism is good or bad."[5]

Definitions

Black's Law Dictionary defines judicial activism as a "philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions."[6]

Political science professor Bradley Canon has posited six dimensions along which judge courts may be perceived as activist:[7]:239 majoritarianism, interpretive stability, interpretive fidelity, substance/democratic process, specificity of policy, and availability of an alternate policymaker. David Strauss has argued that judicial activism can be narrowly defined as one or more of three possible actions: overturning laws as unconstitutional, overturning judicial precedent, and ruling against a preferred interpretation of the constitution.[8]

Others have been less confident of the term's meaning, finding it instead to be little more than a rhetorical shorthand. Kermit Roosevelt III stated that "in practice 'activist' turns out to be little more than a rhetorically charged shorthand for decision the speaker disagrees with";[9]:2-3 likewise, former Solicitor General under George W. Bush, Theodore Olson stated in an interview on Fox News Sunday, in regards to a case for same-sex marriage he had successfully litigated for, that "most people use the term "judicial activism" to explain decisions that they don't like."[10]:2 Others such as current Supreme Court Justice Anthony Kennedy have scolded this approach as unhelpful because it relies on subjective judgments.[11][12]

Debate

Detractors of judicial activism charge that it usurps the power of the elected branches of government or appointed agencies, damaging the rule of law and democracy.[13] Defenders of judicial activism say that in many cases it is a legitimate form of judicial review, and that the interpretation of the law must change with changing times.

A third view is that so-called "objective" interpretation of the law does not exist. According to law professor Brian Z. Tamanaha, "Throughout the so-called formalist age, it turns out, many prominent judges and jurists acknowledged that there were gaps and uncertainties in the law and that judges must sometimes make choices."[14]

Some proponents of a stronger judiciary argue that the judiciary helps provide checks and balances and should grant itself an expanded role to counterbalance the effects of transient majoritarianism, i.e. there should be an increase in the powers of a branch of government which is not directly subject to the electorate, so that the majority cannot dominate or oppress any particular minority through its elective powers.[15]

Moreover, they argue that the judiciary strikes down both elected and unelected official action, in some instances acts of legislative bodies reflecting the view the transient majority may have had at the moment of passage and not necessarily the view the same legislative body may have at the time the legislation is struck down. Also, the judges that are appointed are usually appointed by previously elected executive officials so that their philosophy should reflect that of those who nominated them, that an independent judiciary is a great asset to civil society since special interests are unable to dictate their version of constitutional interpretation with threat of stopping political donations.

Examples

The following have been cited as examples of judicial activism:

Geographical differences

While the term was first coined and is often used in the United States, it has also been applied in other countries, particularly common law jurisdictions.

[icon] This section requires expansion.

See also

Notes

  1. ^ Christopher Wolfe, Judicial activism, Rowman & Littlefield, ISBN 0847685314.
  2. ^ Haines & Sherwood, The Role of the Supreme Court in American Government and Politics: 1789-1835, 1944, p.209
  3. ^ Keenan Kmiec in a 2004 California Law Review article
  4. ^ Keenan D. Kmiec, The Origin and Current Meanings of "Judicial Activism," 92 Cal. L. Rev. 1441, 1447 (2004).
  5. ^ An Intellectual History of Judicial Activism Craig Green, August 2008, p. 4
  6. ^ As quoted in "Takings Clause Jurisprudence: Muddled, Perhaps; Judicial Activism, No" DF O'Scannlain, Geo. JL & Pub. Pol'y, 2002
  7. ^ Bradley C. Canon - "Defining the Dimensions of Judicial Activism", Judicature, 66.6, 1983
  8. ^ Interpreting the Constitution Chicago Public Radio - Odyssey, September 13 2005, archived on January 3 2009 from the original
  9. ^ Kermit Roosevelt, III, The Myth of Judicial Activism: Making Sense of Supreme Court Decisions, Yale University Press, 2008, ISBN 0300126913, 9780300126914.
  10. ^ Wallace, Chris; Olson, Theodore (August 8, 2010). "Ted Olson on Debate Over Judicial Activism and Same-Sex Marriage". Fox News Sunday (Fox News Channel). http://www.foxnews.com/on-air/fox-news-sunday/transcript/ted-olson-debate-over-judicial-activism-and-same-sex-marriage. 
  11. ^ Frederick P. Lewis, The context of judicial activism: the endurance of the Warren Court legacy in a conservative age, Rowman & Littlefield: 1999, ISBN 0847689921
  12. ^ Matt Sedensky, "Justice questions way court nominees are grilled," Associated Press, May 14, 2010, accessed May 14, 2010.
  13. ^ Justice Antonin Scalia's dissent in Romer v. Evans; Romer, Governor of Colorado, et al. v. Evans et al. (94-1039), 517 U.S. 620 (1996).
  14. ^ Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging, Princeton University Press, 2010
  15. ^ John Hart Ely, Democracy and Distrust. Cambridge: Harvard University Press, 1980, chapters 4-6.
  16. ^ Vincent Martin Bonventre, "Judicial activism, judges' speech, and merit selection: conventional wisdom and nonsense", Albany Law Review, Summer 2005, Judicial activism, judges' speech, and merit selection: conventional wisdom and nonsense Albany Law Review, 2005
  17. ^ Roe v. Wade a classic example of judicial activism The Daily Campus, September 12 2008
  18. ^ The real case of judicial activism The Times Herald, June 2 2009
  19. ^ Mann, Thomas E. (January 26, 2010). "Commentary: Citizens United vs. FEC is an egregious exercise of judicial activism". McClatchy News Service. http://www.mcclatchydc.com/2010/01/26/82982/commentary-citizens-united-is.html. Retrieved 2010-04-29. 
  20. ^ "California Officials React To Proposition 8 Ruling". KRCR-TV. August 4 2010. http://www.krcrtv.com/news/24515963/detail.html. Retrieved 2010-08-05.  Congressman Wally Herger issued a statement, "This is simply another example of judicial activism and legislating from the bench..."
    *Graves, Bill (August 4 2010). "California court ruling lifts hopes for Oregon gay marriage supporters". The Oregonian. http://www.oregonlive.com/politics/index.ssf/2010/08/california_court_ruling_lifts.html. Retrieved 2010-08-05.  Tim Nashif, political director of the Oregon Family Council, "We think it is judicial activism at its worst."
    *Donovan, Charles A (August 4 2010). "Prop. 8 ruling an act of extreme judicial activism". Orange County Register. http://www.ocregister.com/opinion/marriage-260724-state-judge.html. Retrieved 2010-08-05.  Charles A. Donovan of the Heritage Foundation, "Today's decision by a federal district judge in San Francisco striking down state constitutional protections for marriage and inventing a spurious federal constitutional right to same-sex marriage is an example of extreme judicial activism."

References

  • Merriam-Webster's Dictionary of Law (1996), Merriam-Webster. ISBN 0-87779-604-1
  • Bryan A. Garner (1999). Black's Law Dictionary, 8th Edition. West Group. ISBN 0-314-15199-0. 

Further reading

Legal books

  • Paul O. Carrese, 2003. The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism (Chicago: University of Chicago Press).
  • Duncan Kennedy, 1998. A Critique of Adjudication (Cambridge, MA: Harvard University Press).
  • Carrol D. Kilgore, 1977. Judicial Tyranny: An Inquiry into the Integrity of the Federal Judiciary (Thomas Nelson). ISBN 978-0840740601
  • 105th Cong., I @ Sess. I, 1997. Judicial Activism: Defining the Problem and its Impact: Testimony before the Subcommittee on the Constitution, Federalism & Property Rights (U.S. G.P.O., Supt. of Docs., Congressional Sales Office Publishers), 205pp. ISBN 0-16-055917-0
  • Sterling Harwood, 1996. Judicial Activism: A Restrained Defense (London: Austin & Winfield Publishers), 167pp. ISBN 1-880921-68-5.
  • Christopher Wolfe, 1997. Judicial Activism, 2nd ed. (Totowa, NJ: Rowman & Littfield Publishers, Inc.).
  • Kenneth M. Holland, editor, 1991. Judicial Activism in Comparative Perspective (Palgrave Macmillan).
  • Ronald Dworkin, 1988. Law's Empire (Cambridge, MA: Harvard University Press).
  • Alexander M. Bickel, 1986. The Least Dangerous Branch 2nd ed. (New Haven, CT: Yale University Press).
  • Arthur Selwyn Miller, 1982. Toward Increased Judicial Activism (Greenwood Press).
  • Ronald Dworkin, 1977. Taking Rights Seriously (Cambridge, MA: Harvard University Press).
  • Lino A. Graglia, 1976. Disaster by Decree (Ithaca, NY: Cornell University Press).
  • Michael Rebell and Arthur R. Block, 1982. Educational Policy Making and the Courts: An Empirical Study of Judicial Activism (Chicago: University of Chicago Press).
  • H.L.A. Hart, 1961. The Concept of Law (Oxford: Oxford University Press).

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Oxford Companion to the US Supreme Court. The Oxford Companion to the Supreme Court of the United States. Copyright © 1992, 2005 by Oxford University Press. All rights reserved.  Read more
Oxford Dictionary of Politics. The Concise Oxford Dictionary of Politics. Copyright © 1996, 2003 by Oxford University Press. All rights reserved.  Read more
Barron's Law Dictionary. Law Dictionary. Copyright © 2003 by Barron's Educational Series, Inc. All rights reserved.  Read more
Dictionary of Cultural Literacy: Politics. The New Dictionary of Cultural Literacy, Third Edition Edited by E.D. Hirsch, Jr., Joseph F. Kett, and James Trefil. Copyright © 2002 by Houghton Mifflin Company. Published by Houghton Mifflin. All rights reserved.  Read more
Wikipedia on Answers.com. This article is licensed under the Creative Commons Attribution/Share-Alike License. It uses material from the Wikipedia article Judicial activism.  Read more

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