Other Definitions
judicial activism (dict)
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Judicial ActivismThe phrases "judicial activism" and "activist judges" in the United States, Australia, Canada and other countries with common law systems, are politically charged terms with negative connotations refering to judges who use the power of judicial review to overturn laws or articulate new legal principles in such a fashion that the ruling appears results oriented and without sufficient precedent. What constitutes sufficient legal precedent seems to get to the heart of debate surrounding the issue of judicial activism. Criteria for Accusation Judges who are accused of "judicial activism" often share the following characteristics. - Interpreting their states' Constitution broadly to include personal liberties not explicitly enumerated within the document
- Overturning an existing law
- Establishing a previously unarticulated legal principle or right
- Ruling contrary to popular opinion
The term implies the judges are ruling based on their personal political convictions rather than a strict interpretation of the law. Of course, how strictly laws and especially the constitution should be interpreted is matter of great debate. However, in practice, judges are accused of "judicial activism" irrespective of their political alignment. For example, in the United States, Republican governors appointed six of the seven justices on the Massachusetts high court, who ruled the ban on gay marriage unconstitutional in Goodridge et al. v. Department of Public Health. Republican presidents appointed four of the six U.S. Supreme Court Lawrence v. Texas justices who voted to strike down sodomy laws. Most often those called "judicial activists" have made ruling pertaining to the application of the Equal Protection Clause and the right to privacy. Debate Those who label judges as "judicial activists" believe the justices are 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 running contrary to the principles of popular sovereignty. Others see such rulings as an important balance on lawmakers' power, preventing a tyranny of the majority, which is seen as worse than a tyranny of five people in black robes. Critics of judicial activism believe that the Constitution should be interpreted according to original intent. By this, they mean that we should interpret the words according to what they meant at the time they were written. For example, critics argue that phrases like "due process" and "freedom of the press" had a long established meaning in British law, even before they were put into the Constitution of the United States."http://www.townhall.com/columnists/thomassowell/ts20041110.shtml Most of the criticism of judicial activism in the American media focuses on liberal judges. The left on the other hand says the right has a long history of judicial activism, going back to the 19th century endowment of corporations with the same rights as citizens. Opponents of judicial activism claim it's not about liberal v conservative at all, but about whether judges or elected representatives should make law, and whether the US Constitution should be interpreted strictly or whether it is an "evolving document". Indeed, opponents can point to supporters of original intent such as SCOTUS justices Antonin Scalia and Clarence Thomas whose strict interpretation of the Constitution at times led them to make "liberal" rulings. Divisions can also break along partisan lines, as in the case of Bush v. Gore, which offended liberals. However, defenders of SCOTUS's ruling here claim that they were merely overturning a very broad interpretation of the Florida State Constitution by their Supreme Court.http://www.jewishworldreview.com/cols/coulter112700.asp,http://www.jewishworldreview.com/cols/coulter121400.asp Other criticisms of judicial activism include: - If judges make decisions that are based on their own notions rather than the written law, then how can ordinary citizens reasonably predict the outcome of a case? They can read the law but not read the judges' minds. Thus lawyers can threaten citizens and companies with frivolous lawsuits — in many cases people will pay out large sums of money rather than risk an expensive court case where they have no way of predicting the verdict.http://www.townhall.com/columnists/thomassowell/ts20050310.shtml
- How can any judge or elected official swear allegiance to the Constitution, when its alleged meaning keeps changing according to the whims of judges?
Related rulings Marbury v. Madison was the first ruling establishing the powers of judicial review. Books - 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
External links * Judges Gone Wild
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