Judicial activism is a judicial philosophy holding that courts can and should go beyond the applicable law to consider broader societal implications of their decisions. It is sometimes used as an antonym of judicial restraint. The term usually implies that a judge makes rulings based on their own views rather than on precedent. The definition of judicial activism, and which specific decisions are considered activist, are controversial political issues. The question of judicial activism is closely related to judicial interpretation, statutory interpretation, and separation of powers.
Etymology Arthur Schlesinger Jr. introduced the term "judicial activism" in a January 1947 Fortune magazine article titled "The Supreme Court: 1947".
The phrase has been controversial since its beginning. An article by Craig Green, "An Intellectual History of Judicial Activism," is critical of Schlesinger's use of the term; "Schlesinger's original introduction of judicial activism was doubly blurred: not only did he fail to explain what counts as activism, he also declined to say whether activism is good or bad.""An Intellectual History of Judicial Activism" Craig Green, August 2008, p. 4
Even before this phrase was first used, the general concept already existed. For example, Thomas Jefferson dubbed the judiciary a "despotic branch" when it was composed mostly of Federalist federal judges, notably referring to Chief Justice John Marshall.
Definitions 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."As quoted in "Takings Clause Jurisprudence: Muddled, Perhaps; Judicial Activism, No" DF O'Scannlain, Geo. JL & Pub. Pol'y, 2002
Political science professor Bradley Canon has posited six dimensions along which judges or courts may be perceived as activist: majoritarianism, interpretive stability, interpretive fidelity, substance/democratic process, specificity of policy, and availability of an alternate policymaker.
David A. Strauss has argued that judicial activism can be narrowly defined as one or more of three possible actions: overturning laws as unconstitutional, overturning judicial precedent, and ruling against a preferred interpretation of the constitution.
Others have been less confident of the term's meaning, finding it instead to be little more than a rhetorical shorthand. Kermit Roosevelt III has argued that "in practice 'activist' turns out to be little more than a rhetorically charged shorthand for decisions the speaker disagrees with". Roosevelt defines judicial activism as "an approach to the exercise of judicial review, or a description of a particular judicial decision, in which a judge is generally considered more willing to decide constitutional issues and to invalidate legislative or executive actions.";Kermit Roosevelt, III, The Myth of Judicial Activism: Making Sense of Supreme Court Decisions, Yale University Press, 2008, . likewise, the solicitor general under George W. Bush, Theodore Olson, said in an interview on Fox News Sunday, with regard to a case for same-sex marriage he had successfully litigated, that "most people use the term 'judicial activism' to explain decisions that they don't like." Supreme Court Justice Anthony Kennedy said that, "An activist court is a court that makes a decision you don't like."Frederick P. Lewis, The context of judicial activism: the endurance of the Warren Court legacy in a conservative age, Rowman & Littlefield: 1999, Matt Sedensky, "Justice questions way court nominees are grilled," Associated Press, May 14, 2010, Retrieved 14 May 2010
Indeterminacy debate in legal theory
Defenders of judicial activism say that in many cases it is a legitimate form of judicial review and that the interpretation of the law must change with changing times. Sunset provisions can limit the interpretation uncertainties in the law.
According to law professor Brian Z. Tamanaha, "Throughout the so-called formalist age, it turns out, many prominent judges and jurists acknowledged that there were gaps and uncertainties in the law and that judges must sometimes make choices."See also, Alschuler, Albert W., Law Without Values: The Life, Work, and Legacy of Justice Holmes (University of Chicago Press, 2000), p. 98. ("Possibly some now-obscure German legal theorist fit Holmes's description [in The Common Law] of the deductive formalist bogeyman, but I know of no American who did.") Under this view, any judge's use of judicial discretion will necessarily be shaped by that judge's personal and professional experience and his or her views on a wide range of matters, from legal and juridical philosophy to morals and ethics. This implies a tension between granting flexibility (to enable the dispensing of justice) and placing bounds on that flexibility (to hold judges to ruling from legal grounds rather than extralegal ones).
Critical legal studies argues that political argument and legal argument cannot be entirely separated.Price, David Andrew. "Taking rights cynically: a review of critical legal studies." The Cambridge Law Journal 48.2 (1989): 271–301.
Judicial independence
Some proponents of a stronger judiciary argue that the judiciary helps provide checks and balances and should grant itself an expanded role to counterbalance the effects of transient majoritarianism, i.e., there should be an increase in the powers of a branch of government that is not directly subject to the electorate, so that the majority cannot dominate or oppress any particular minority through its elective powers. Other scholars have proposed that judicial activism is most appropriate when it restrains the tendency of democratic majorities to act out of passion and prejudice rather than after reasoned deliberation.Evan Zoldan, "Targeted Judicial Activism," 16 Green Bag 2d 465–466 (2014)
Richard H. Fallon Jr. quotes Justice Holmes "great cases... make bad law." in their explanation on presidential overreach. "Presidents frequently interpret their own powers without judicial review and where executive precedents play a large role in subsequent interpretive debates, some of the historical assertions of presidential authority that stretch constitutional and statutory language the furthest seem hard to condemn in light of the practical stakes."
Judicial accountability
Detractors of judicial activism charge that it usurps the power of the elected branches of government and of legislatively created agencies, damaging the rule of law and democracy.Justice Antonin Scalia's dissent in Romer v. Evans, 517 U.S. 620 (1996) One opponent of judicial activism wrote, "The courts have gradually abandoned their proper role of policing the structural limits on government and neutrally interpreting the laws and constitutional provisions without personal bias." Advocates of minimalist definitions of democracy focus on electoral accountability as source of political legitimacy, while maximalist definitions of democracy, include additional values typically enshrined in the constitutions. Parliamentary sovereignty views legislative bodies as supreme over judiciary. Constitutionalism views the constitution as supreme.Don E. Fehrenbacher, Constitutions and Constitutionalism in the Slaveholding South (University of Georgia Press, 1989), p. 1. .
By country United States
The following rulings have been characterized as judicial activism.
Dred Scott v. Sandford - 1857 decision ruling that African Americans could not claim citizen rights even if they had resided in free states. Brown v. Board of Education – 1954 Supreme Court ruling ordering the desegregation of public schools. Roe v. Wade – 1973 Supreme Court ruling creating the constitutional right to an abortion. Harlow v. Fitzgerald – A 1982 decision that significantly expanded the scope of the controversial qualified immunity doctrine.https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=13555&context=journal_articles Bush v. Gore – The United States Supreme Court case between the major-party candidates in the 2000 presidential election, George W. Bush and Al Gore. The justices voted 5–4 to halt the recount of ballots in Florida and as a result Bush was chosen as president.The real case of judicial activism The Times Herald, June 2, 2009 Citizens United v. Federal Election Commission – 2010 Supreme Court decision declaring congressionally enacted limitations on corporate political spending and transparency as unconstitutional restrictions on free speech. Obergefell v. Hodges – 2015 Supreme Court decision declaring same-sex marriage as a right guaranteed under the Due Process Clause and the Fourteenth Amendment. Janus v. AFSCME – a 2018 Supreme Court decision addressing whether unions can require dues from all workers who benefit from collective bargaining agreements. The decision overturned the 41-year-old precedent of Abood v. Detroit Board of Education. Department of Homeland Security v. Regents of the University of California – a 2020 Supreme Court decision addressing whether the Department of Homeland Security under President Donald Trump had the authority to dismantle the Deferred Action for Childhood Arrivals program initiated by Executive Order under former President Barack Obama. Dobbs v. Jackson Women's Health Organization – a 2022 Supreme Court ruling reversing the effects of Roe v. Wade, allowing states once again to forbid abortion within their borders. Trump v. United States – a 2024 Supreme Court case holding a President of the United States has immunity from criminal prosecution for "official acts" after Donald Trump and others engaged in election interference during the 2020 election, including events during the January 6, 2021, attack on the U.S. Capitol.
Some US Presidents have also commented on the idea. When President George W. Bush announced his first nominations for the federal bench, he declared:
Canada
Judges in Canada are given the power to interpret law passed down from the legislature, discretionary power to resolve disputes, and the power to use common law and accepted judicial policy to render judgement. By the principle of separation of powers, a strong tradition in Canada and accepted practice, judges should respect the role of the legislature to create law. Judges are also charged to impartially apply the law as it is written.
Canada has a legal system that is derived from the British system of common law (and the French system in the province of Quebec). Canadian Courts have a structure that relies more heavily on the discretion of its judges, policy and common law to create a workable body of law. Thus Canada's legal system may have more potential for conflicts with regards to the accusation of judicial activism, as compared to the United States.
Former Chief Justice of the Supreme Court of Canada Beverley McLachlin has stated that:
the charge of judicial activism may be understood as saying that judges are pursuing a particular political agenda, that they are allowing their political views to determine the outcome of cases before them. ... It is a serious matter to suggest that any branch of government is deliberately acting in a manner that is inconsistent with its constitutional role.
European Union
In the Cassis de Dijon Case, the European Court of Justice ruled the German laws prohibiting sales of liquors with alcohol percentages between 15% and 25% conflicted with EU laws. This ruling confirmed that EU law has primacy over member-state law.EUabc – Cassis de Djion case: http://en.euabc.com/word/140 When the treaties are unclear, they leave room for the Court to interpret them in different ways. When EU treaties are negotiated, it is difficult to get all governments to agree on a clear set of laws. In order to get a compromise, governments agree to leave a decision on an issue to the Court.