Judicial activism describes judicial rulings 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. This phrase is generally traced back to a comment by Thomas Jefferson, referring to the "despotic behaviour" of Federalist federal judges, in particular, John Marshall.^[2] The question of judicial activism is closely related to constitutional interpretation, statutory construction, and separation of powers.

  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]

The phrase has been controversial since its beginning. 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."^[4]

  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."^[5]

Political science professor Bradley Canon has posited six dimensions along which judge courts may be perceived as activist:^[6]: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.^[7]

Others have been less confident of the term's meaning, finding it instead to be little more than a rhetorical shorthand. Kermit Roosevelt III has argued that "in practice 'activist' turns out to be little more than a rhetorically charged shorthand for decisions the speaker disagrees with"^[8]:2–3; likewise, the solicitor general under George W. Bush, Theodore Olson, said in an interview on Fox News Sunday, in regards to a case for same-sex marriage he had successfully litigated, that "most people use the term 'judicial activism' to explain decisions that they don't like."^[9]:2 Others such as current Supreme Court Justice Anthony Kennedy have scolded this approach as unhelpful because it relies on subjective judgments.^[10][11]

  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.^[12] 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."^[13]

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.^[14]

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.^[15]
• Roe v. Wade – 1973 Supreme Court ruling decriminalizing abortion.^[16]
• Bush v. Gore – The United States Supreme Court case between the major-party candidates in the 2000 presidential election, George W. Bush and Al Gore. The judges voted 5-4 to halt the recount of ballots in Florida and, as a result, George Bush was elected President.^[17]
• Citizens United v. Federal Election Commission – 2010 Supreme Court decision declaring Congressionally enacted limitations on corporate political spending and transparency as unconstitutional restrictions on free speech.^[18][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.

This section requires expansion.

  See also

• Bill of rights
• Constitutional economics
• Kritarchy
• List of landmark court decisions in the United States
• Living Constitution
• Originalism
• Public interest litigation
• Philosophy of law
• 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

  External links

The relevance of particular information in (or previously in) this article or section is disputed. The information may have been removed or included by an editor as a result. Please see discussion on the talk page considering whether its inclusion is warranted. (October 2011)

• 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