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Judicial activism is a political term used to describe judicial rulings that are suspected to be based upon personal and political considerations other than existing law. Judicial restraint is sometimes used as an antonym of judicial activism. The term may have more specific meaning in certain political contexts.
Concerns of judicial activism are closely tied to constitutional interpretation, statutory construction, and separation of powers.
"Judicial activism" is frequently used in political debate without a clear definition, which has created some confusion over its precise meaning.
Bradley Canon posited six dimensions along which judge courts may be perceived as activist are::239
- Majoritarianism — This dimension takes into account the degree to which policies adopted through the democratic process are judicially overturned.
- Interpretive stability — This dimension takes into account the degree to which court decisions alter earlier decisions, doctrines, or constitutional interpretations.
- Interpretive fidelity — This dimension takes into account the degree to which constitutional provisions are interpreted contrary to the clear intentions of their drafters, or the clear implications of the language used in the provision. (See also Judicial interpretation)
- Substance/democratic process — This dimension takes into account the degree to which judicial decisions make substantive policy, as opposed to acting to preserve the democratic political process.
- Specificity of policy — This dimension takes into account the degree to which a judicial decision establishes policy itself, as opposed to leaving discretion to other agencies.
- Availability of an alternate policymaker — This dimension takes into account the degree to which a judicial decision supersedes or inhibits serious consideration of the same problem by other government agencies.
Arthur Schlesinger Jr. introduced the term "judicial activism" to the public in a January 1947 Fortune magazine article titled "The Supreme Court: 1947." According to Keenan Kmiec, in a 2004 article in California Law Review,
||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.
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. They argue that an unelected or elected judicial branch has no legitimate grounds to overrule policy choices of duly elected or appointed representatives, in the absence of a real conflict with the constitution. In some instances, government regulation by appointed officers in government agencies are overturned by elected judges.
Defenders of judicial prerogatives say that many cases of so called "judicial activism" merely exemplify judicial review, and that courts must uphold existing laws and strike down any statute that violates a superseding law. For example, ruling a statute is unconstitutional because it conflicts with the Constitution of a jurisdiction.
However, detractors of judicial activism retort that neither democracy nor the rule of law can exist when the law is merely what judges presently say it should be. Defenders counterclaim that indeed this is precisely what the role of the judiciary is , namely to interpret the law. Detractors argue that the discretion of judges must be limited e.g. by the intentions of lawmakers and appointed or elected government officers, or else any group of people engaged in any behavior could become a judicially protected minority, and any law could be subverted by the predilections of elected or appointed judges.
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. Moreover, they argue that the judiciary strikes down both elected and unelected official action, that in some instances acts of legislative bodies reflect 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, that 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 corporations and the wealthy are unable to dictate their version of constitutional interpretation with threat of stopping political donations.
- ^ Bradley C. Canon - "Defining the Dimensions of Judicial Activism", Judicature, 66.6, 1983
- ^ Keenan Kmiec in a 2004 California Law Review article
- ^ Keenan D. Kmiec, The Origin and Current Meanings of "Judicial Activism," 92 Cal. L. Rev. 1441, 1447 (2004).]
- ^ See, e.g., Justice Antonin Scalia's dissent in Romer v. Evans
- ^ John Hart Ely, Democracy and Distrust. Cambridge: Harvard University Press, 1980, chapters 4-6.
- 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.
- 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).
- 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
- 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.
- Keenan Kmiec, The origin and current meanings of "judicial activism", California Law Review, 2004.
- 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
- Who are the bench's judicial activists? Looking at the Supreme Court justices' voting records, the lines between activism and restraint may surprise you
- Every Judge Is an "Activist Judge" by Allison Kilkenny, The Huffington Post, July 13, 2009
- Movement for Rule of Law Pakistan