The phrases "judicial activism" and "activist judges" in the United States, Australia, Canada and other countries with common law systems, are political epithets refering to judges who allegedly exceed their jurisdiction. A judge is considered activist when he or she uses the power of judicial review to overturn laws or articulate new legal principles with insufficient precedent, especially for purposes of shaping government policy.
Criteria for Accusation
Judges who are accused of "judicial activism" often share the following characteristics.
- Interpreting a state or national Constitution broadly to include personal liberties not explicitly enumerated within the document
- Overturning an existing law
- Establishing a previously unarticulated legal principle or right
- Ruling contrary to popular opinion
The term implies the judges are ruling based on their personal political convictions rather than a strict interpretation of the law. Of course, how strictly laws and especially the constitution should be interpreted is matter of great debate. However, in practice, judges are accused of "judicial activism" irrespective of their political alignment. For example, in the United States, Anthony Kennedy is considered the most "activist" judge on the Supreme Court by some like Phyllis Schlafly, yet was an appointee of the conservative Ronald Reagan and is a moderate conservative [1].
Most often those called "judicial activists" have made ruling pertaining to the application of the Equal Protection Clause and the right to privacy.
Debate
Those who label judges as "judicial activists" believe the justices are subverting the democratic process. Such critics feel that broadly interpreting the law as through judicial review leaves an unreasonable concentration of power in the hands of a privileged few, and running contrary to the principles of popular sovereignty. Others see such rulings as an important balance on lawmakers' power, preventing a tyranny of the majority, which is seen as worse than a tyranny of five people in black robes.
Critics of judicial activism believe that the Constitution should be interpreted according to original intent. By this, they mean that we should interpret the words according to what they meant at the time they were written. For example, critics argue that phrases like "due process" and "freedom of the press" had a long established meaning in British law, even before they were put into the Constitution of the United States."[2]
Most of the criticism of judicial activism in the American media focuses on liberal judges. The left on the other hand says the right has a long history of judicial activism, going back to the 19th century endowment of corporations with the same rights as citizens. Opponents of judicial activism claim it's not about liberal v conservative at all, but about whether judges or elected representatives should make law, and whether the US Constitution should be interpreted strictly or whether it is an "evolving document". Indeed, opponents can point to supporters of original intent such as SCOTUS justices Antonin Scalia and Clarence Thomas whose strict interpretation of the Constitution at times led them to make "liberal" rulings.
Divisions can also break along partisan lines, as in the case of Bush v. Gore, which offended liberals. However, defenders of SCOTUS's ruling here claim that they were merely overturning a very broad interpretation of the Florida State Constitution by their Supreme Court.[3],[4]
Other criticisms of judicial activism include:
- The unpredictability of decisions by an activist court: people may not be able to act legally if the law's meaning changes over time. One possible outcome of this confusion is the threat of frivolous lawsuits[5].
- The sworn allegiance of judges to uphold the constitution: critics of activist judges argue that such judges violate their oath when they reinterpret the constitution.
- Alternative mechanisms for change: the constitution contains a mechanism (Article V ) for adding amendments. Some argue that it is better to amend the text of the constitution rather than to change the meaning of the existing text
Related rulings
Marbury v. Madison was the first ruling establishing the powers of judicial review.
Roper v. Simmons ruled that executing a minor was "now" unconstitutional, even if it had not been "until recently".
See Also
Judeo-Christian Council for Constitutional Restoration John Cornyn Tom DeLay Phyllis Schlafly Constitution in Exile
Books
External links
Last updated: 05-09-2005 15:45:21
Last updated: 05-13-2005 07:56:04
