Essay on “Judicial Activism” for CSS, PMS and Judiciary Examination

This is an essay on “Judicial Activism” for CSS, PMS, and Judiciary examination. Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint. According to Merriam-Webster’s Dictionary of Law, Judicial Activism defines as “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”.

Essay on “Judicial Activism”

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

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 misinterpret, ignores, or otherwise flaunts the law and or legal precedence due to personal opinion, be that opinion ideological, religious, philosophical, or other.

The theory of judicial behavior that .advocates basing decisions not on the judicial precedent but on achieving what the court perceives to be. for the public welfare, or what the court determines to be fair and just on the facts before it.

Judicial activism is a term used by political scholars to describe a tendency by judges to consider outcomes, attitudinal preferences, and other public policy issues in interpreting applicable existing law. Formally, judicial activism is considered the opposite of judicial restraint, but it is also used pejoratively to describe judges who endorse a particular agenda.

The charge that judges are going beyond their appropriate powers and engaging in making law and not merely interpreting it. Against this position is placed the ideal of judicial restraint, which counsels judges to resist the temptation to influence public policy through their decisions and decrees.

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Judicial activism is not a prisoner to any particular ideological or political viewpoint; it can be conservative as well as liberal. A long period of American history was characterized by conservative judicial activism, by a Supreme Court unwilling to allow the states or Congress to pass legislation that would regulate social or economic affairs.

Typically such legislation laws governing child labor, workers’ hours, and so forth would be invalidated as violations of _the Constitution’s Commerce Clause or Contracts Clause or of the judicially created doctrine of “liberty of contract” under the Due Process Clause of the Fourteenth Amendment (see Contract, Freedom of).

The best-known example of conservative judicial activism is Lochner v. New York (1905), a case in which th_e Court invalidated New York’s law regulating the hours bakers could work as a  violation of “liberty of contract,” a part of the doctrine of substantive due process under the Fourteenth Amendment.

More recently the Court has been subject to criticism that it is engaging in liberal activism. This has been especially the case since the advent of the Warren Court and the revolution that it wrought in civil liberties, but the charge has continued through the Burger Court and into the· Rehnquist Cour. The argument is that in the name of expanding the “rights” a majority of the justices find agreeable, the Cour is twisting the Constitution by disregarding the original meaning of the Due Process and Equal Protection Clauses in order to reach dewed results.

The distinction between judicial activism and judicial restraint is closely related to the distinction between interpretivism, and non-interpretivism and the question of whether it is ever appropriate for judges to import new meaning into the old words of the Constitution.

A campaign against judicial activism became a hallmark of presidencies as ideologically diverse as those of Franklin D. Roosevelt, Richard M. Nixon, and Ronald Reagan.

Those who subscribe to judicial restraint contend that the role of judges should be scrupulously limited; it is their job merely to say what the law is, leaving the business of lawmaking where it properly belongs, with legislators and e.xecutives. Under no circumstances, moreover, should judges allow their personal political values and policy agendas to colour their judicial opinions.

This view holds that the original intent of the authors of the Constitution and its amendments is knowable, and must guide the courts. Detractors of judicial activism charge that it usurps the 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, absent a real conflict with the constitution.

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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 status 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.

Arthur Schlesinger Jr. introduces the term “judicial activism” to the public in a Fortune magazine article in January 1947.

The methods by which judges engage in judicial activism, according to critics who make this accusation, include the following:

  • Overturning legislation passed by an elected legislature using an interpretation of the constitution that critics believe is not clearly mandated or implied by the constitutional text;
  • Ruling against the text or intent of a statue, using what critics argue is an incorrect or overreaching interpretation;
  • Ruling against judicial precedent in a way that critics hold is a radical or unjustified departure from accepted interpretation;
  • Holding legislation unconstitutional based on what critics view as a clearly flawed precedent;
  • Selectively using obscure case law or foreign law, in preference to what is seen by critics as 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 what critics say is a questionable manner.

“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.

President of USA Ronald Reagan criticized “judicial activism” as “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”.

Justice David Souter wrote; “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 …

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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.” Judicial activism is when courts do not confine themselves to reasonable interpretations of laws, but instead create law.

Alternatively, judicial activism is when courts do not limit their ruling to the dispute before them, but instead establish a new rule to apply broadly to issues not presented in the specific action. “Judicial activism” is when judges substitute their own political opinions for the applicable law, or when judges act as a legislature (legislating from the bench) rather than like a traditional court. In so doing, the court takes for itself the powers of Congress, rather than limiting itself to the powers traditionally given to the judiciary.

Legislating from the bench is a good way to describe judicial activism. Judicial activism occurs when a Judge or Justice decides an issue based on personal or political ideology or pressure from special interests instead of abiding by the Constitution and/or the previous precedent. The United States has a system of checks and balances to ensure that one branch of the federal government will not become too powerful. Under the separation of powers doctrine, only Congress has the power to legislate. Judicial activism violates that separation of powers by effectively creating a new law that often affects the entire nation instead of settling the particular case at hand.

Chief Justice Marshall said:

“The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended to, we must decide if it is brought before us. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other is treason to the Constitution”.

Chief Justice of the United States once said, “We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution”.

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