Defining And Understanding Judicial Activism

November 27, 2017

Defining And Understanding Judicial Activism

Judicial activism relates to those judicial rulings that are based on personal opinion instead of on a law that already exists. Many of the examples of judicial activism are actually quite controversial political issues, especially in the United States today. This is because the questions here are closely related to constitutional interpretation, statutory construction, and separation of powers.

Simply put, judicial activism is defined as one or more of these three actions:
Overturning laws because they’re unconstitutional
Overturning a judicial precedent
Ruling against a preferred interpretation of the constitution

There are 6 times when someone may consider a judge an activist. This includes:
Interpretive stability
Interpretive fidelity
Substance or democratic process
Availability of an alternate policymaker
Specificity of policy

Some Examples of Judicial Activism

Some of the most commonly accepted examples of judicial activism include:
Brown v. Board of Education in 1954 led to the desegregation of public schools by the Supreme Court
Roe v. Wade in 1973 led to the legalization of abortion by the Supreme Court
Bush v. Gore in the 2000 presidential election put an end to the recounting of ballots in Florida, leading to the election of Bush as president.
Citizens United v. Federal Election Commission in 2010 led the Supreme Court to decide that Congress couldn’t limit corporate political spending as this was a form of free speech
Hollingsworth v. Perry in 2013 led federal judge Vaughn R. Walker to overturn California’s constitutional amendment that banned same-sex marriage
Obergefell v. Hodges in 2015 led the Supreme Court to declare that same-sex marriage is a right people are guaranteed because of the Due Process Clause and the Fourteenth Amendment

Why Judicial Activism is Controversial

The phrase judicial activism was controversial since it was first introduced by Arthur Schlesinger Jr. in January 1947. People considered this term blurry because Schlesinger didn’t explain what activism was nor did he say if it was good or bad. However, even before Schlesinger coined the term, the concept already existed. In fact, Thomas Jefferson talked about the Federalist federal judges’ “despotic behavior.”

Some argue that judicial activism usurps the power of people who are elected to serve the people in the various branches of government. This damages the processes of law and democracy. However, those who are in favor of judicial activism believe laws must change with the times. As such, the great debate over this isuse continues to rage.

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