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Encyclopedia > Activist judges
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Judicial activism is a form of judicial interpretation which results in case law which does not follow precedent or which exceeds the scope of established law, and can be contrasted with judicial restraint. The extent to which the decisions of judges are sometimes characterised as "activist" has lead to ongoing controversy over the appropriate role and function of the judiciary, notably in the United States, Australia and Canada. There are several theories as to how judges ought to interpret legal sources (legislation, case law and constitutional provisions). ... Case law (precedential law) is the body of judge-made law and legal decisions that interprets prior case law, statutes and other legal authority -- including doctrinal writings by legal scholars such as the Corpus Juris Secundum, Halsburys Laws of England or the doctinal writings found in the Recueil Dalloz... Precedent, sometimes authority, is the legal principle or rule created by a court which guides judges in subsequent cases with similar issues or facts. ... Ultra vires is a Latin phrase that literally means beyond the power. ... The neutrality of this article is disputed. ... The judiciary, also referred to as the judicature, consists of the system of courts of law for the administration of justice and to its principals, the justices, judges and magistrates among other types of adjudicators. ...


Opponents of judicial activism contend that the judiciary must not create new law when resolving disputes or interpreting the law. They argue that the law-making role is strictly the preserve of the legislature, and that when judges venture into this role, they make rulings on the basis of personal convictions or some other inappropriate ground. Dispute resolution is the process of resolving disputes between parties. ... A legislature is a governmental deliberative assembly with the power to adopt laws. ...


Proponents argue that the role of the judiciary under the doctrine of the separation of powers will sometimes necessarily result in decisions which go beyond established law, and that this serves as a useful and desirable safeguard against majoritarianism. They also question the opprobrium associated with the term, seeing it as an example of loaded language which contains the unstated and uncritical assumption that the judiciary must never create new law when interpreting it. The separation of powers (or trias politica, coined by French political thinker Montesquieu) is a model for the governance of the state which requires the division of political power between an executive, a legislature, and a judiciary. ... Majoritarianism is a political philosophy or agenda which asserts that a majority (sometimes categorized by religion, language or some other identifying factor) of the population is entitled to a certain degree of primacy in society, and has the right to make decisions that affect the society. ... A language construct, such as a word or a question, is said to be loaded if it carries meaning or implications beyond its strict definition (its denotation). ...


"Judicial activism" is increasingly used pejoratively or as a discrediting tactic in relation to a ruling or decision which is not accepted, especially if the ruling or decision is perceived to endorse or implement a social or political agenda. A decision characterised as an instance of judicial activism in one legal system may not constitute judicial activism in another, and an individual's position on the issue of judicial activism often reflects their stance on a host of other socio-political issues. The expression discrediting tactics in politics refers to personal attacks against a public figure intended to discourage people from believing in the figure or supporting their cause (see damaging quotations). ... The political agenda is the issues and policies set out by either the executive or cabinet in government which dictate existing and near-future political news and debate. ...

Contents


Definition

The definition of "judicial activism" is itself an intense ongoing debate. According to Merriam-Webster's Dictionary of Law, judicial activism is "the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent". According to Black's Law Dictionary, judicial activism is "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." link title Blacks Law Dictionary, 7th edition Blacks Law Dictionary has traditionally been regarded as the definitive legal dictionary for the law of the United States. ...


The current uses of the term in the United States tend to be associated with other political points of view.


Conservatives tend to argue that judicial activism is the process of ignoring, or at least selectively choosing, precedent in order to hand down rulings which dramatically expand personal freedoms, such as Roe v. Wade and Lawrence v. Texas. They also complain that stare decisis (or worse yet, foreign precedent) is sometimes used to trump the original meaning (or, in some cases, the original intent) of the text, or that the text is given so broad a construction as to render it almost infinitely malleable. American conservatism is a heterogenous political movement that incorporates many different ideologies under the blanket heading of conservative. ... Holding Texas laws criminalizing abortion violated womens Fourteenth Amendment right to choose whether to continue a pregnancy. ... Holding A Texas law prohibiting homosexual sodomy violated the liberty under the Fourteenth Amendment of adults to engage in private intimate conduct. ... Stare decisis (Latin: , Anglicisation: , to stand by things decided) (more fully, stare decisis et non quieta movere) is a Latin legal term, used in common law to express the notion that prior court decisions must be recognized as precedents, according to case law. ... To meet Wikipedias quality standards, this article may require cleanup. ... Intentionalism redirects here. ...


Liberals tend to argue that judicial activism is primarily manifested as striking down statutes enacted by Congress, or paying insufficient deference to a co-ordinate branch of government. They argue that conservative judges are willing to use a strict construction of the Constitution to frustrate the essentially democratic character of the Constitution (see discussion of "Active Liberty" at Stephen Breyer). Some liberal scholars such as Cass Sunstein and Paul Gewirtz have attempted to redefine judicial activism neutrally to apply simply to a decision of the judiciary to strike down legislative acts. This definition is disputed because judicial review, i.e., the power of the judicial branch to strike down legislation under certain circumstances is part of the judicial branch's duty according to the Constitution. American liberalism (also called modern liberalism) is a political current that claims descent from classical liberalism in terms of devotion to individual liberty, but rejects the laissez faire economics of classical liberalism in favor of institutions that promote social and economic equity. ... Justice Stephen Breyer Stephen Gerald Breyer (born August 15, 1938) is an American attorney, political figure, and jurist. ... Look up liberal on Wiktionary, the free dictionary Liberal may refer to: Politics: Liberalism American liberalism, a political trend in the USA Political progressivism, a political ideology that is for change, often associated with liberal movements Liberty, the condition of being free from control or restrictions Liberal Party, members of... Cass R. Sunstein (b. ... Judicial review is the power of a court to review a law or an official act of a government employee or agent for constitutionality or for the violation of basic principles of justice. ...


A description of judicial activity which many would agree constitutes "judicial activism" was provided by Justice Byron White in his dissenting opinion in Doe v. Bolton (it is of course arguable whether White here accurately describes what occurred in Doe): Doe v. ...

"I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right...and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state...statutes."

White's statement identifies the two most commonly identified features of judicial activism: judicial action which 1) is not based clearly on the text or history of any law and/or 2) displaces more existing law than necessary.


Thomas Sowell has argued that "it is ultimately the Constitution toward which the jurist is 'active' or 'restrained'" (from Judicial Activism Reconsidered) because Judicial Activism implies going beyond the normal constraints applied to jurists, and the Constitution gives jurists the right to strike down any legislation or rule against any precedent if it goes against the Constitution. Thus, ruling against majority opinion or judicial precedent is not necessarily Judicial Activism unless it is active specifically in terms of the Constitution. Thomas Sowell Thomas Sowell (born 30 June 1930) is a prominent American economist, political writer, and conservative-libertarian[1] commentator. ...


Some consider the term "judicial activism" to be synonymous with broad construction, which is a theory of constitutional interpretation that holds to the "spirit of the times or the values of the justices". The New Dictionary of Cultural Literacy defines broad construction as a theory of interpretation of the Constitution that holds the spirit of the times or the values of the justices and the needs of the nation. ... Look up Zeitgeist in Wiktionary, the free dictionary Zeitgeist is originally a German expression that means the spirit (Geist) of the time (Zeit). It denotes the intellectual and cultural climate of an era. ...


Many are critical of judicial activism as an exercise of judicial power, which displaces existing law or creates more legal uncertainty than is necessary, whether or not the ruling has some constitutional, historical or other basis. This, it is argued, violates the doctrine of separation of powers. Judicial activism can be considered as (and is often called) "legislating from the bench" (i.e., promulgation of new law) Article I, Section 1, Clause 1 of the United States Constitution reserves "All legislative powers" to the United States Congress. Furthermore, as the power of the judiciary is expanded while the power of the executive and legislative branches is diminished, without reasonably clear authorization in the text or history of a nation's governing law. The separation of powers (or trias politica, coined by French political thinker Montesquieu) is a model for the governance of the state which requires the division of political power between an executive, a legislature, and a judiciary. ... The Constitution of the United States is the supreme law of the United States of America. ... Congress in Joint Session. ... The judiciary, also referred to as the judicature, consists of the system of courts of law for the administration of justice and to its principals, the justices, judges and magistrates among other types of adjudicators. ...


Criteria

In the U.S., judicial activism can be defined as exceeding the scope of the authority of the judicial branch's role in the Constitution's scheme of separation of powers. The separation of powers (or trias politica, coined by French political thinker Montesquieu) is a model for the governance of the state which requires the division of political power between an executive, a legislature, and a judiciary. ...


Judicial activism is more narrowly defined as one of four possible actions:

  1. Declaring to be unconstitutional an act of legislative law which is not unconstitutional
  2. Upholding an act of legislative law which is unconstitutional
  3. Overturning or ruling against standing judicial precedent
  4. Ruling against the text or intent of the Constitution or a statute

It is argued that these tools are used to further a Judge's political agenda; for example, liberals charge that United States v. Lopez was motivated by pro-gun sentiments on the part of the Lopez court, and conservatives charge that Planned Parenthood v. Casey was motivated by pro-abortion sentiments on the part of the Casey court. A legislature is a governmental deliberative body with the power to adopt laws. ... A legislature is a governmental deliberative body with the power to adopt laws. ... Stare decisis (Latin: , Anglicisation: , to stand by things decided) (more fully, stare decisis et non quieta movere) is a Latin legal term, used in common law to express the notion that prior court decisions must be recognized as precedents, according to case law. ... Intentionalism redirects here. ... Holding Possession of a gun near a school is not an economic activity that has a substantial effect on interstate commerce. ... Holding A Pennsylvania law that required spousal notification prior to obtaining an abortion was invalid under the Fourteenth Amendment because it created an undue burden on married women seeking an abortion. ...



More broadly, any of the following acts can trigger an accusation of judicial activism:

  • Interpreting a state or national constitution broadly in order to include personal liberties not explicitly enumerated within the document itself (see, e.g., Roe v. Wade)
  • Overturning an existing law, especially when it is known to disagree with the judge's personal political leanings (see, e.g., Texas v. Johnson)
  • Refusing to overturn an existing law, especially when it is known to agree with the judge's personal political leanings (see, e.g., Dred Scott v. Sanford).
  • Establishing a legal principle or right which is not written in the law or constitution (see, e.g., Griswold v. Connecticut).
  • Failing to adhere to precedent (see, e.g., Lawrence v. Texas, overruling Bowers v. Hardwick).
  • Adhering to precedent over text when precedent and constitutional (or statutory) text are in conflict (see, e.g., Kelo v. New London).
  • Ruling in a way that prescribes public policy (see, e.g., Engel v. Vitale).
  • Ruling contrary to popular opinion (see, e.g., Terri Schiavo). Note: popular opinion can be tricky to determine, especially in the midst a media circus.


An accusation of judicial activism implies that the judge is not performing his or her duty as an interpreter of the law, but is instead ruling on the basis of personal political convictions or emotions. However, the amount of freedom a judge has when interpreting the law is a matter of great debate, with views ranging from strict constructionism to the Living Constitution. In practice, judges are accused of judicial activism irrespective of their political alignment or judicial philosophy. For example, many conservatives decry Griswold v. Connecticut, which declared that the United States Constitution protects invasion of privacy by the states, as judicial activism. Yet the same conservatives decried as judicial activism the ruling in Fields v. Palmdale School District, in which the ninth circuit court of appeals ruled that there is not a right to privacy in the Constitution (in this case, where children's education is concerned). Holding Texas laws criminalizing abortion violated womens Fourteenth Amendment right to choose whether to continue a pregnancy. ... Holding A Texas statute that criminalized the desecration of the American flag violated the First Amendment. ... Holding Blacks, whether slaves or free, could not become United States citizens and the plaintiff therefore lacked the capacity to file a lawsuit. ... Holding A Connecticut law criminalizing the use of contraceptives violated the right to marital privacy. ... Holding A Texas law prohibiting homosexual sodomy violated the liberty under the Fourteenth Amendment of adults to engage in private intimate conduct. ... Holding A Georgia law prohibiting sodomy was valid because there was no constitutionally protected right to engage in homosexual sodomy. ... Holding The governmental taking of property from one private owner to give to another in furtherance of economic development constitutes a permissible public use under the Fifth Amendment. ... Engel v. ... Terri Schiavo before her 1990 collapse. ... INS agents recover Elián González by force from his uncles house; this photo, taken by AP photographer Alan Diaz, won him a Pulitzer Prize. ... Strict constructionism is a philosophy of judicial interpretation and legal philosophy that holds to the meanings of words and phrases as used when they were written down. ... The living Constitution is a Constitution whose boundaries and provisions are dynamic and amorphous, congruent with whatever the needs of society (or, critics complain, the desires of a judge) may be at a particular moment, rather than possessing a fixed and definitive meaning. ... Holding A Connecticut law criminalizing the use of contraceptives violated the right to marital privacy. ... The Constitution of the United States is the supreme law of the United States of America. ...


In America, accusations of "judicial activism" are usually a response to rulings about the Equal Protection Clause, due process rights (the doctrine of "substantive due process"), and the right to privacy. In Canada, such accusations often arise in response to rulings involving the Canadian Charter of Rights and Freedoms, especially (but not exclusively) rulings that have favored the extension of gay rights. Justice Rosalie Abella is a particularly common target of those who perceive inappropriate activism on the Supreme Court of Canada bench. The Equal Protection Clause is a part of the Fourteenth Amendment to the United States Constitution, providing that no state shall . ... To meet Wikipedias quality standards, this article or section may require cleanup. ... The right to privacy is a purported human right and an element of various legal traditions which may restrain both government and private party action. ... The Canadian Charter of Rights and Freedoms is a constitutionally entrenched bill of rights which forms part of the Constitution Act, 1982, added to the Constitution of Canada in 1982. ... The Honourable Madam Justice Rosalie Silberman Abella The Honourable Rosalie Silberman Abella (born July 1, 1946 in Stuttgart, Germany) is a Canadian jurist. ... The Supreme Court Building in Ottawa The Supreme Court of Canada (French: Cour suprême du Canada) is highest court of Canada and is the final court of appeal for all litigants in the Canadian justice system. ...


Judicial philosophies as judicial activism

The Living Constitution as judicial activism

Some critics argue that the Living Constitution approach to judicial philosophy is necessarily activist. Their argument is that the Living Constitution philosophy endorses any ruling, so long as the judge can argue that his ruling 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, the Living Constitution leads to unpredictable rulings, making it impossible to obey the law. One possible outcome of this confusion is the threat of frivolous lawsuits. [1] The living Constitution is a Constitution whose boundaries and provisions are dynamic and amorphous, congruent with whatever the needs of society (or, critics complain, the desires of a judge) may be at a particular moment, rather than possessing a fixed and definitive meaning. ... In courts, a lawsuit or legal argument is termed frivolous if it is filed in spite of the fact that both the plaintiff and his lawyer knew that it had no merit and it did not argue for a reasonable extension or reinterpretation of the law or no underlying justification...


Critics of the Living Constitution 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 which is not done strictly in accordance with existing law must be activism. Indeed, they continue, Congress is explicitly empowered by the Constitution to make law, and the Constitution deliberately has an amendment process in Article V. Consequently, any change to the laws or the Constitution outside this framework is itself illegal. The separation of powers (or trias politica, coined by French political thinker Montesquieu) is a model for the governance of the state which requires the division of political power between an executive, a legislature, and a judiciary. ... A congress is a gathering of people, especially a gathering for a political purpose. ... Article Five of the United States Constitution describes the process whereby the Constitution may be altered. ...


Usually these critics are originalists. Originalists of all types reject the idea that contemporary standards should determine the meaning of the Constitution, and consequently reject the idea that the meaning of the Constitution can change (outside, that is, of the Article V amendment process). Because of this they believe that the Living Constitution is inherently activist. To meet Wikipedias quality standards, this article may require cleanup. ... Article Five of the United States Constitution describes the process whereby the Constitution may be altered. ...


Originalism as judicial activism

Some critics of originalism have charged that doctrine with judicial activism: To meet Wikipedias quality standards, this article may require cleanup. ...

  • Many cases that come into courts today involve issues that couldn't possibly have been contemplated by the writers of the Constitution. In that respect, reliance on the original meaning without extrapolation is often not an option (ironically, this criticism is valid against original meaning Originalism, but less so against Original intent Originalism).
  • This article argues that originalism is a form of judicial activism; briefly, the article defines activism to be the striking down of laws, then gives statistics to demonstrate that Clarence Thomas and Antonin Scalia, the two originalists on the Supreme Court of the United States, are among those most likely to vote to strike down laws. This article defends originalism against the charge. If this metric is used, then the point is a strong one. However, it rests on the predicate of its definition, and as we have seen, defining judicial activism as nothing more than a willingness to strike down statutes is problematic at best.
  • Originalism is necessarily concerned with what the Constitution meant when it was ratified. Since many Originalists are conservatives or libertarians, a system of judicial interpretation which tends to confine the changes of the 20th century is, to put it politely, highly convenient for people of such political leanings.
  • One final point worth noting: Bad originalism is often seen as judicial activism.

Intentionalism redirects here. ... Justice Clarence Thomas Justice Clarence Thomas (born June 23, 1948) is an American jurist and has been an Associate Justice of the Supreme Court of the United States since 1991. ... Justice Antonin Scalia Antonin Gregory Scalia (born March 11, 1936) has been a U.S. Supreme Court Associate Justice since 1986. ... The Supreme Court of the United States is the supreme court in the United States. ... Conservatism or political conservatism is any of several historically related political philosophies or political ideologies. ... This article deals with the libertarianism as defined in America and several other nations. ... Bad originalism refers to one or another kind of corruption of Originalism, and may well be a form of Judicial activism. ...

Judicial Activism on the Supreme Court

All of the current justices of The U.S. Supreme Court have explicitly disavowed judicial activism at certain points. Chief Justice John Glover Roberts's 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.”) John Glover Roberts, Jr. ...


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." John Paul Stevens (born April 20, 1920) is an American jurist and the senior Associate Justice of the U.S. Supreme Court. ... Michigan v. ...


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 David Souter Justice David Hackett Souter (born September 17, 1939) has been an Associate Justice of the U.S. Supreme Court since 1990. ...


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 Ruth Bader Ginsburg Justice Ruth Joan Bader Ginsburg (born March 15, 1933) is a United States jurist. ...


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. Justice Stephen Breyer Stephen Gerald Breyer (born August 15, 1938) is an American attorney, political figure, and jurist. ...


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." Justice Harry Blackmun Harry Andrew Blackmun (November 12, 1908 – March 4, 1999) was an Associate Justice of the Supreme Court of the United States from 1970 to 1994. ... Holding The arbitrary and inconsistant imposition of the death penalty violates the Eighth and Fourteenth Amendment, and constitutes cruel and unusual punishment. ...


A 2005 study of the Supreme Court [2] studied the votes of the then-current set of justices on the court. They found that Justices Thomas, Kennedy and Scalia voted to strike down the greatest number of Congressional provisions, while Stevens, Ginsburg and Breyer voted to strike down the smallest.


Criticism of judicial activism

Those who label judges as "judicial activists" believe them to be 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 runs contrary to the principles of popular sovereignty. Others see such rulings as an important balance on the power of elected representatives to make laws, preventing a Tyranny of the majority, which is seen as worse than a "tyranny" of the judges which are relatively few. Democracy (from Greek δημοκρατία (demokratia), δημος (demos) the common people + κρατειν (kratein) to rule + the suffix ία (ia), literally the common people rule) is a system where the population of a society controls the government. ... Judicial review is the power of a court to review a law or an official act of a government employee or agent for constitutionality or for the violation of basic principles of justice. ... Popular sovereignty is the doctrine that government is created by and subject to the will of the people, who are the source of all political power. ... The doctrine and practice of dispersing political power and creating mutual accountability between political entities such as the courts, the president or prime minister, the legislature, and the citizens. ... Majoritarianism (often also called majority rule) is a political philosophy or agenda which asserts that a majority (sometimes categorized by religion, language or some other identifying factor) of the population is entitled to a certain degree of primacy in society, and has the right to make decisions that affect the...


Historically, liberal judges have been most accused of judicial activism, but in response it is pointed out that conservative judges have an equally long history of judicial activism, even though it has not been called by that name until recently. For example, the Warren Court has been accused of judicial activism for its heavy-handed approach to civil rights, whereas the era of jurisprudence that began with Lochner v. New York has long been dismissed as an inappropriate abuse of judicial power. Earl Warren Earl Warren (March 19, 1891 – July 9, 1974) was a California district attorney and 30th Governor of California, but is best known as the 14th Chief Justice of the United States from 1953-1969. ... Holding New Yorks regulation of the working hours of bakers was not a justifiable restriction of the right to contract freely under the 14th Amendments guarantee of liberty. ...


Opponents of judicial activism claim it is not about liberal v. conservative at all, but about whether a constitution should be interpreted strictly according to its text, or whether it is an "evolving document" which requires judges to assign new meanings to its words. Indeed, opponents can point to proponents of Originalism such as Supreme Court justices Antonin Scalia and Clarence Thomas whose strict interpretation of the Constitution has at times led them to make "liberal" rulings. Critics of these arguments note that those who make these charges tend to ignore the actual text of the Constitution themselves, such as the Ninth Amendment, which provides that the rights retained by the people are not limited to those explicitly enumerated. Defenders of Scalia and Thomas, however, do not view those justices' views of the Ninth Amendment as activist. Justice Antonin Scalia Antonin Gregory Scalia (born March 11, 1936) has been a U.S. Supreme Court Associate Justice since 1986. ... Justice Clarence Thomas Justice Clarence Thomas (born June 23, 1948) is an American jurist and has been an Associate Justice of the Supreme Court of the United States since 1991. ... Amendment IX (the Ninth Amendment) to the United States Constitution, which is part of the Bill of Rights, states: // Adoption of the Ninth Amendment In his introduction before the House of Representatives of the original twelve Amendments proposed to the states, ten of which would be ratified and become known...


Another way critics of judicial activism frame the problem is through the question of whether judges or elected representatives should be the ones to make the law. Indeed, there are many high profile cases in which the courts have expanded individual liberties by overriding state laws, as in Brown v. Board of Education, Roe v. Wade, and Lawrence v. Texas. However, this approach is often in conflict with the position of strict constructionists who, as a 2005 analysis of the Rehnquist court showed, are among the most likely to overrule Congress[3] by striking down laws which they believe overstep government authority as construed by the constitution. Brown v. ... Holding Texas laws criminalizing abortion violated womens Fourteenth Amendment right to choose whether to continue a pregnancy. ... Holding A Texas law prohibiting homosexual sodomy violated the liberty under the Fourteenth Amendment of adults to engage in private intimate conduct. ...


Divisions can also break along partisan lines, as in the case of Bush v. Gore, which offended Democrats. The majority opinion in the case, in which the conservatives on the Supreme Court applied a controversial equal protection analysis that was allegedly inconsistent with those Justices' stated interpretive philosophies to overturn a state court's determination of state law, and is considered by liberals to be a pristine example of conservative "judicial activism" to reach a desired end. A political party is an organization that seeks to attain political power within a government, usually by participating in electoral campaigns. ... Holding Any manual recount of votes seeking to meet the December 12 “safe harbor” deadline would be unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. ... The Democratic Party is one of the two major political parties in the United States. ...


The more pejorative epithet "judicial tyranny" is sometimes used synonymously in political rhetoric, but that phrase has been more generally used to condemn non-elect judges who overturn policy decisions by elected officials, whatever the constitutional basis for their decisions. Look up pejorative on Wiktionary, the free dictionary. ... This article is being considered for deletion in accordance with Wikipedias deletion policy. ...


There is disagreement among critics of judicial activism about the best solution. For example, Charles Krauthammer, who considers judicial activism "undemocratic" and "politically crazy" over the long term, also condemns the "delirious" attacks on judges by Tom DeLay, John Cornyn, and Phyllis Schlafly as a threat to separation of powers and judicial independence, which he sees as one of the most important aspects of U.S. democracy, though he believes their threats may make judges more humble.[4] Charles Krauthammer Charles Krauthammer (born March 13, 1950 in New York) is a syndicated columnist who appears in the Washington Post and other publications. ... Thomas Dale DeLay (born April 8, 1947) is an American politician from Sugar Land, Texas and a prominent Republican. ... John Cornyn III (born February 2, 1952) is the junior United States Senator from Texas. ... Phyllis Schlafly (born on August 15, 1924, in Saint Louis, Missouri) is an American conservative political activist known for her opposition to feminism in general and the Equal Rights Amendment (ERA) in particular. ... The separation of powers (or trias politica, coined by French political thinker Montesquieu) is a model for the governance of the state which requires the division of political power between an executive, a legislature, and a judiciary. ... The political concept of an independent judiciary is that the judges in a countrys legal system should be immune to impeachment or political manipulation. ...


Related rulings

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), was the first ruling establishing the powers of judicial review. Holding Section 13 of the Judiciary Act of 1789 is unconstitutional to the extent it purports to enlarge the original jurisdiction of the Supreme Court beyond that permitted by the Constitution. ... Court citation is a standard system used in common law countries such as the United States, United Kingdom, Canada, New Zealand and Australia to uniquely identify the location of past court cases in special series of books called reporters. ... 1803 was a common year starting on Saturday (see link for calendar). ... Judicial review is the power of a court to review a law or an official act of a government employee or agent for constitutionality or for the violation of basic principles of justice. ...


Dred Scott v. Sandford Holding Blacks, whether slaves or free, could not become United States citizens and the plaintiff therefore lacked the capacity to file a lawsuit. ...


See also

The Constitution in Exile is a controversial term that refers to provisions of the United States Constitution whose interpretation by the Supreme Court have changed since roughly the 1930s, and which have not been strictly enforced, such as the interstate commerce clause. ... John Cornyn III (born February 2, 1952) is the junior United States Senator from Texas. ... Thomas Dale DeLay (born April 8, 1947) is an American politician from Sugar Land, Texas and a prominent Republican. ... The Hollow Hope: Can Courts Bring About Social Change? was written by Gerald N. Rosenberg and published in 1991. ... The Judeo-Christian Council for Constitutional Restoration is a conservative, religious organization formed in early 2005 that runs the website StopActivistJudges. ... Regulation through litigation refers to changes in society (particularly those which affect industries) which are brought about through the process of litigation, rather than through legislation or regulation. ... Phyllis Schlafly (born on August 15, 1924, in Saint Louis, Missouri) is an American conservative political activist known for her opposition to feminism in general and the Equal Rights Amendment (ERA) in particular. ... Acting spontaneously without prompting from another party. ...

Sources

  • Merriam-Webster's Dictionary of Law (1996), Merriam-Webster. ISBN 0877796041
  • Bryan A. Garner (1999). Black's Law Dictionary, 8th Edition, West Group. ISBN 0314151990.

Books

  • David Barton, 2003. 'Restraining Judicial Activism (Wallbuilder Press).
  • Alexander M. Bickel, 1986. The Least Dangerous Branch 2nd ed. (New Haven, CT: Yale University Press).
  • Robert Bork, 2003. Slouching Toward Gomorrah: Modern Liberalism and American Decline (Regan Books).
  • Bradley C. Canon and Charles A. Johnson, 1998. Judicial Policies: Implementation and Impact 2nd ed. (Congressional Quarterly Books).
  • Paul O. Carrese, 2003. The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism (Chicago: University of Chicago Press).
  • Ronald Dworkin, 1977. Taking Rights Seriously (Cambridge, MA: Harvard University Press).
  • Ronald Dworkin, 1988. Law's Empire (Cambridge, MA: Harvard University Press).
  • Lino A. Graglia, 1976. Disaster by Decree (Ithaca, NY: Cornell University Press).
  • H.L.A. Hart, 1961. The Concept of Law (Oxford: Oxford University Press).
  • Sterling Harwood, 1996. Judicial Activism: A Restrained Defense (London: Austin & Winfield Publishers), 167pp. ISBN 1880921685
  • Kenneth M. Holland, editor, 1991. Judicial Activism in Comparative Perspective (Palgrave Macmillan).
  • Duncan Kennedy, 1998. A Critique of Adjudication (Cambridge, MA: Harvard 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).
  • Phyllis Schlafly, 2004. The Supremacists: The Tyranny Of Judges And How To Stop It ISBN 1-890-62655-4
  • Mark R. Levin, 2005. Men In Black: How the Supreme Court Is Destroying America ISBN 0-895-26050-6
  • Arthur Selwyn Miller, 1982. Toward Increased Judicial Activism (Greenwood Press).
  • David Gwynn Morgan, 2001. A Judgment Too Far? Judicial Activism and the Constitution (Cork University Press).
  • William P. Murchison, 1982. Judicial Politics Gone Wild: A Case Study of Judicial Activism in Texas (Washington Legal Foundation), 11pp.
  • 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 0809080737.
  • Christopher Wolfe, 1997. Judicial Activism, 2nd ed. (Totowa, NJ: Rowman & Littfield Publishers, Inc.).

David Barton is an author and an American historian who analyzes the Church-State relationship in the United States of America. ... Alexander Mordecai Bickel (December 17, 1924 – November 8, 1974) was a law professor and expert on the United States Constitution. ... Robert Bork Robert Heron Bork (born March 1, 1927 in Pittsburgh, Pennsylvania) is a conservative American legal scholar who advocates the judicial philosophy of originalism. ... Ronald Dworkin (born 1931) is an American philosopher, especially noted for his contributions to jurisprudence including legal philosophy, political philosophy, and moral philosophy. ... Ronald Dworkin (born 1931) is an American philosopher, especially noted for his contributions to jurisprudence including legal philosophy, political philosophy, and moral philosophy. ... H. L. A. Hart (Herbert Lionel Adolphus Hart) (1907-1992) is considered one of the most important legal philosophers of the twentieth century. ... Duncan Kennedy (*1942 in Washington, D.C.) is the Carter Professor of General Jurisprudence at Harvard Law School. ... Phyllis Schlafly (born on August 15, 1924, in Saint Louis, Missouri) is an American conservative political activist known for her opposition to feminism in general and the Equal Rights Amendment (ERA) in particular. ...

External links

  • Ending Judicial Tyranny (PowerPoint)
  • Thomas Sowell. Judicial activism reconsidered
  • Don Feder, 2000. Liberals discover judicial activism
  • Charles Krauthammer, 2003. The Constitution is whatever Sandra Day O'Connor says it is
  • Judges Gone Wild
  • Nixon and judicial activism
  • The origin and current meanings of "judicial activism" (California Law Review - October, 2004)
  • CourtZero.org
  • Larry Solum, "Jargon"

  Results from FactBites:
 
Stopping The Mischief Of Activist Judges -- Phyllis Schlafly Feb. 4, 2004 column. (487 words)
The federal judiciary is still peopled with Clinton-appointed, Carter-appointed, and even LBJ-appointed activist judges who are trying to abolish those sacred practices, and Congress has the duty to use the "constitutional process" (such as set forth in Article III) to terminate their mischief.
The enormous damage that activist judges have inflicted on America is described in the new book by Judge Robert H. Bork called "Coercing Virtue: The Worldwide Rule of Judges." The title is rather misleading; the judicial oligarchy is not dictating virtue but enforcing a new ideology that he calls "lifestyle socialism."
Activist judges are so thoroughly secularized that "they not only reject personal belief but maintain an active hostility to religion and religious institutions." The Supreme Court "has almost succeeded in establishing a new religion: secular humanism."
  More results at FactBites »

 
 

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