Judicial activism

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 1 Origins of the term 2 Definitions 3 Debate 4 Examples 5 Geographical differences 6 See also 7 Notes 8 References 9 Further reading 9.1 Legal books 9.2 Popular books 10 External links

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:

• Brown v. Board of Education - 1954 Supreme Court ruling ordering the desegregation of public schools.^[16]
• Roe v. Wade - 1973 Supreme Court ruling decriminalizing abortion.^[17]
• Bush v. Gore - The landmark United States Supreme Court case between the major-party candidates in the 2000 presidential election, George W. Bush and Al Gore. The judges voted along ideological lines, 5-4, to halt the recount of ballots in Florida and, in effect, elect Bush President.^[18]
• Citizens United v. Federal Election Commission - 2010 Supreme Court decision overturning Congressionally enacted limitations on corporate political spending and transparency.^[19]
• Perry v. Schwarzenegger - 2010 decision by federal judge Vaughn R. Walker overturning California's constitutional amendment to ban same-sex marriage.^[20]

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.

See also

• Originalism
• Living Constitution
• Judicial activism in the European Union
• Kritarchy
• Bill of rights
• Judicial activism in Canada
• Constitutional economics
• Public interest litigation
• Rule according to higher law

Notes

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).

Popular books

• Kermit Roosevelt, October 15, 2006. The Myth of Judicial Activism: Making Sense of Supreme Court Decisions (Yale University Press Publishers), 272pp. ISBN 0-300-11468-0
• James B. Kelly, July 30, 2006. Governing With the Charter: Legislative And Judicial Activism And Framer's Intent (Law and Society Series) (UBC Press Publishers), 336pp. ISBN 0-7748-1212-5
• Rory Leishman, May 2006. Against Judicial Activism: The Decline of Freedom And Democracy in Canada (McGill-Queen's University Press Publishers), 310pp. ISBN 0-7735-3054-1
• Mark Sutherland, 2005. Judicial Tyranny: The New Kings of America? ISBN 0-9753455-6-7
• Mark R. Levin, 2005. Men In Black: How the Supreme Court Is Destroying America ISBN 0-89526-050-6
• S.Hrg. 108–717, 2004. Judicial Activism vs. Democracy: What are the National Implications of the Massachusetts Goodridge Decision and the Judicial Invalidation of Traditional Marriage Laws? (U.S. G.P.O., Supt. of Docs., Congressional Sales Office Publishers), 263pp. Serial No. J-108-59. GPO Stock No. 552-070-32572-7, ISBN 0-16-074535-7
• Phyllis Schlafly, 2004. The Supremacists: The Tyranny Of Judges And How To Stop It ISBN 1-890626-55-4
• S. P. Sathe, December 2003. Judicial Activism in India (Oxford University Press Publishers), 406pp. ISBN 0-19-566823-5
• David Barton, 2003. Restraining Judicial Activism (Wallbuilder Press). ISBN 1932225145
• Robert Bork, 2003. Coercing Virtue: The Worldwide Rule of Judges (AEI Press) ISBN 0844741620
• Stephen P. Powers and Stanley Rothman, 2002. The Least Dangerous Branch? Consequences of Judicial Activism (Praeger Paperbacks). ISBN 0275975363
• Herman Schwartz, editor, 2002. The Rehnquist Court: Judicial Activism on the Right ISBN 0-8090-8073-7.
• David Gwynn Morgan, 2001. A Judgment Too Far? Judicial Activism and the Constitution (Cork University Press). ISBN 1859182291
• Bradley C. Canon and Charles A. Johnson, 1998. Judicial Policies: Implementation and Impact 2nd ed. (Congressional Quarterly Books).
• William P. Murchison, 1982. Judicial Politics Gone Wild: A Case Study of Judicial Activism in Texas (Washington Legal Foundation), 11pp

External links

• Ronald Dworkin, The Jurisprudence of Richard Nixon, 1972.
• Matthew J. Franck, Depends What the Meaning of "Judicial Activism" Is, 2006.
• Jonah Goldberg, Justice Kennedy's Mind: Where the Constitution resides, 2005.
• Charles Krauthammer, The Constitution is whatever Sandra Day O'Connor says it is, 2003.
• Larry Solum, "Jargon" (blog entry), 2004.
• Joseph Tussman, Judicial Activism and the Rule of Law - Toward a Theory of Selective Intervention, 1991
• Thomas Sowell, Judicial activism reconsidered, 1989.
• Judicial Activism in America: Information Resources and Proposed Solutions
• Defining Judicial Activism in the Context of the Culture Wars
• Every Judge Is an "Activist Judge" by Allison Kilkenny, The Huffington Post, July 13, 2009