Judicial Activism

Judicial activism is an expansive exercise of judicial discretion, where a court preempts or extends existing precedent, principle, or policy. Common to all definitions of judicial activism is the concept of judicial overreaching—a daring use of judicial power to effect social change (policy making). A more neutral term would be judicial intervention.

First coined by Arthur Schlesinger, Jr., in a January 1947 Fortune magazine article (featuring a hypothetical dialogue between the “Champions of Self-Restraint” and the “Judicial Activists”), the term judicial activism typically carries a pejorative connotation—“judges making law” (although case law is judge-made law) or “judges behaving badly.” Thus the term judicial activism most often appears in the context of judicial critique. Critics disfavor judicial activism as a creature of judicial intrusiveness that, under the pejorative view, undermines representative democracy through judicial autocracy. Judicial activism arguably subverts past precedent and perverts legislative intent (under a separation of powers analysis) through legal artifices, where judges wield excessive interpretive latitude. Activist judges, critics say, exercise their judicial discretion contrary to their principals (i.e., as agents for legislators in applying the law) in favor of their principles (i.e., as agents for social policy considerations). Positively, judicial activism may be regarded as legal adaptation to social change by evolving principles drawn from constitutional text and precedent and applying core constitutional values progressively. (Black's Law Dictionary adds “progressiveness” to its definition of “judicial activism.”)

Judicial review admittedly poses an inherent countermajoritarian conundrum: why should nine unelected judges (in the United States, state judges are elected, but federal justices are appointed) have the ultimate authority over the majoritarian will? As Alexander Bickel points out in his classic, The Least Dangerous Branch, judicial insulation from popular will (elections) permits the judiciary to be faithful to the sovereign will (the Constitution). Viewed as a “living document,” the Constitution is susceptible to progressive interpretations. Indeed, few would deny the fact that Brown v. Board of Education, under Chief Justice Earl Warren, stands as positive example of judicial activism that has changed the course of American social history for the better. That landmark decision was a reflex of what Ronald Dworkin has called “strong” discretion versus “weak” discretion, where a court will effectively nullify or refashion government laws and state action. In the context of international law, comparative studies of judicial activism in other countries illustrate the strategic role that judicial intervention plays in world affairs.

In the American system, the U.S. Constitution is the foundation of the rule of law. All legislation, litigation, and enforcement must, therefore, act within constitutional limits. What those constitutional norms and limits are is often a vexed question, a matter of interpretation. Judicial activism in the American context is often characterized as the polar opposite of judicial restraint or strict construction, which strictly applies the U.S. Constitution and statutes, and does not “legis-late from the bench.” On the other end of the spectrum is judicial inactivism, which operates to preserve the status quo, with judicial restraint somewhere in between. Judicial activism is typically characterized as “broad” (as opposed to “narrow”) construction. Through artful interpretive techniques, judicially activist decisions creatively apply case-law precedents, juridical principles, and/or social policies to reach controversial, if not an otherwise impossible results. Such negative estimates of judicial activism carry over into the various frameworks of analysis that have been proposed as methodologically elegant approaches to judicial activism.

...