Judicial activism is a pejorative term for the misuse of judicial power and is a neologism for the older classical term "board judicial review." The most common connotation is subjective, in which the speaker condemns judicial decisions that, in the view of the speaker, are directed at reaching a predetermined outcome based on the political convictions of the judges without regard to the speaker's view of the U.S. Constitution, written law or legal precedent. A second connotation, slightly less common, characterizes judicial decisions based on an objective statistical measurement of the rate at which a tribunal of the unelected judicial branch overrules the determinations of the elected legislative and executive branches. For either connotation, the antonym would be Judicial restraint.
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, usu. with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent."
David Strauss of the University of Chicago Law School has argued that judicial activism can be narrowly defined as one or more of three possible things:
- overturning laws as unconstitutional
- overturning judicial precedent
- ruling against a preferred interpretation of the constitution
Critics of Strauss' view have argued that these definitions include only legal interpretation. They argue that a judge may be termed "activist" based on the remedy chosen, even if the legal interpretation is not "activist".
In practice, a speaker may use the term "activist judge" to mean that a judge has simply made an important decision that the accusing speaker disagrees with. When used in this way, the term "activist judge" is little more than a term of political criticism. While there are many who are willing to use this hot button term as a simple protest of disagreement, this is not the most common usage, nor the most common understanding, of the term. As a general usage, "activist judge" is used to describe a judge who actively and knowingly subverts, misuses, grossly misinterprets, ignores, or otherwise flouts the law and or legal precedence due to personal opinion, be that opinion ideological, religious, philosophical, or other.
Detractors of judicial activism charge that it usurps power of the legislature
, thereby diminishing the rule of law and democracy. They argue that an unelected judicial branch has no legitimate grounds to overrule policy choices of duly elected representatives, in the absence of a real conflict with the constitution.
Defenders of judicial prerogatives say that many cases of "judicial activism" merely exemplify judicial review, and that courts must uphold the constitution and strike down any statute that violates the constitution. They say that it is the duty of courts to protect minority rights and to uphold the law, notwithstanding the political sentiments of the day, and that constitutional democracy is far more than just majority rule. However, detractors of judicial activism retort that neither democracy nor the rule of law can exist when the law is merely what judges say it should be. They argue that the discretion of judges must be limited (e.g. by the intentions of lawmakers), 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 unelected judges.
Some proponents of a stronger judiciary argue that the judiciary should grant itself an expanded role to counterbalance the effects of 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 any particular minority through its elective powers.
For information about judicial activism in Canada, please see Judicial activism (Canada).
Arthur Schlesinger Jr.
introduced the term "judicial activism" to the public in a Fortune magazine article in January 1947. Keenan Kmiec discusses Schlesinger's article "The Supreme Court: 1947" from Fortune
, January 1947. According to Kmiec,
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.
The methods by which judges may engage in judicial activism:
- Overturning legislation passed by an elected legislature, using an interpretation of the constitution that is not clearly mandated or implied by the constitutional text;
- Ruling against the text or intent of a statute, using an incorrect or overreaching interpretation;
- Ruling against judicial precedent in a way that is a radical or unjustified departure from accepted interpretation;
- Holding legislation unconstitutional based on flawed precedent;
- Selectively using obscure case law or foreign law, in preference to what more pertinent case law or statutory law; and
- Use by state courts of a single subject rule to nullify legislation or state constitutional amendments, in a questionable manner.
Accusations of judicial activism
The Living Constitution as judicial activism
Critics of the concept of a living constitution
approach to judicial philosophy argue it is necessarily activist. They argue that the concept endorses any ruling, so long as the judge can argue that it helps the constitution to grow and evolve. Critics say that this can violate a judge's sworn allegiance to uphold the constitution, because, in effect, it encourages judges to write their own constitutions. Furthermore, they argue that the concept leads to unpredictable rulings, making it impossible to obey the law. One possible outcome of this confusion is the threat of frivolous lawsuits
Critics of the concept also argue that it violates the principle of separation of powers. They say that because the purpose of the judiciary is to interpret existing laws and policies, any action that is not done strictly in accordance with existing law must be activism. Indeed, they continue, the legislative branch is explicitly empowered by the constitution to make law, and the constitution deliberately has an amendment process. Consequently, any change to the laws or the constitution outside this framework is itself illegal.
Originalism as judicial activism
Some critics of originalism have charged that a coalition of conservatives (most prominently Justice Scalia of the U.S. Supreme Court, starting in the mid-1990's) and libertarians seek to overturn New Deal-era Supreme Court rulings whose expansive interpretations of constitutional Congressional power allowed the emergence of the modern regulatory and welfare state. Conservatives, in response, argue that these charges are overblown.
Quotes on judicial activism
Statements by Judges
All of the current justices of the United States Supreme Court
have seemingly disavowed judicial activism at certain points. Chief Justice John Roberts
' disavowal of judicial activism is well-known from his confirmation hearing ("Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.”). Roberts has stated that his view of judicial activism stems from that of Justices Felix Frankfurter
and John Marshall Harlan II
and further stated:
- "[C]ourts should not intrude into areas of policy making reserved by the Constitution to the political branches ... To the extent the term judicial activism is used to describe unjustified intrusions by the judiciary into the realm of policy making, the criticism is well-founded.
- "At the same time, the Framers insulated the federal judiciary from popular pressure in order that the courts would be able to discharge their responsibility of interpreting the law and enforcing the limits the Constitution places on the political branches. Thoughtful critics of 'judicial activism' — such as Justices Holmes, Frankfurter, Jackson, and Harlan — always recognized that judicial vigilance in upholding constitutional rights was in no sense improper 'activism.' It is not 'judicial activism' when the courts carry out their constitutionally-assigned function and overturn a decision of the Executive or Legislature in the course of adjudicating a case or controversy properly before the courts. ...
- "[J]udges must be constantly aware that their role, while important, is limited. They do not have a commission to solve society's problems, as they see them, but simply to decide cases before them according to the rule of law. When the other branches of government exceed their constitutionally mandated limits, the courts can act to confine them to the proper bounds. It is judicial self-restraint, however, that confines judges to their proper constitutional responsibilities."
Justice John Paul Stevens referred in 1983's Michigan v. Long to "my belief that a policy of judicial restraint — one that allows other decisional bodies to have the last word in legal interpretation until it is truly necessary for this Court to intervene — enables this Court to make its most effective contribution to our federal system of government."
Justice David Souter wrote in his opinion in 1997's Washington v. Glucksberg, "We therefore have a clear question about which institution, a legislature or a court, is relatively more competent to deal with an emerging issue as to which facts currently unknown could be dispositive. The answer has to be, for the reasons already stated, that the legislative process is to be preferred ... The experimentation that should be out of the question in constitutional adjudication displacing legislative judgments is entirely proper, as well as highly desirable, when the legislative power addresses an emerging issue like assisted suicide."
Justice Ruth Bader Ginsburg has written, "Measured motions seem to me right, in the main, for constitutional as well as common law adjudication. Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable," in the context of arguing that the Court in Roe v. Wade displaced too much existing state abortion law too quickly.
Justice Stephen Breyer has averred a belief in judicial deference to democratic decision-making, for example in his book, Active Liberty: Interpreting Our Democratic Constitution. Thus, Breyer is often reluctant to join strong interpretations of the First or Fourteenth Amendments striking down laws if the laws at issue reflect considered democratic decision-making.
The late Justice Harry Blackmun explicitly disavowed judicial activism in his dissent in 1972's Furman v. Georgia, which overturned existing state capital punishment statutes. Blackmun, while arguing that "I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty", wrote, "Although personally I may rejoice at the Court's result, I find it difficult to accept or to justify as a matter of history, of law, or of constitutional pronouncement." Later in his career, however, Blackmun consistently voted to hold capital punishment regimes unconstitutional.
Eleventh Circuit Judge William H. Pryor, Jr. discussed judicial activism in a Wall Street Journal piece on October 8, 2006.
In Australia, Justice Dyson Heydon, while a judge of the Court of Appeal of New South Wales, gave a speech that was later widely published as 'Judicial Activism and Death of the Rule of Law', at a time when the government was attempting to find a replacement for a retiring judge of the High Court of Australia. His speech was widely seen as an application for the job, and it turned out to be successful.
Ronald Reagan criticised judicial activism:
- "I intend to go right on appointing highly qualified individuals of the highest personal integrity to the bench, individuals who understand the danger of short-circuiting the electoral process and disenfranchising the people through judicial activism." Remarks During a White House Briefing for United States Attorneys (October 21, 1985)
Judicial activism and individual cases
Various cases and judicial shifts throughout the Supreme Court's history have prompted accusations of judicial activism or overreaching, such as the following:
- Chisholm v. Georgia, 1793, triggering the Eleventh Amendment.
- Various decisions of the Marshall Court (1801-1835, including:
- Dred Scott v. Sandford, 1857.
- Hans v. Louisiana, 1890.
- Lochner v. New York, 1905.
- Both of the Supreme Court's reactions to the New Deal, both before and after the "switch in time" in 1937
- Various decisisions by the Warren Court (1953-1969), including:
- Roe v. Wade, 1973.
- United States v. Lopez, 1995
- Lawrence v. Texas, 2003.
- Kelo v. City of New London, 2005.
- Roper v. Simmons, 2005.
- Bush v. Gore, 2000.
- 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).
- 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).
- 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).
- 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.
- Edward Whelan, A View from the Bench: The unpersuasive case for judicial activism, Weekly Standard 2006-12-04.
- "¡Viva el Activismo Judicial!", by Clint Bolick, Gertrude Ryan Law Observatory, 2007 (Spanish)
- CourtZero.org (blog)
- 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