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.Ī third view is that so-called "objective" or "formalist" interpretation of the law does not exist. 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." Debate ĭetractors 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. 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" likewise, the solicitor general under George W. Others have been less confident of the term's meaning, finding it instead to be little more than a rhetorical shorthand.
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. Political science professor Bradley Canon has posited six dimensions along which judge courts may be perceived as activist: majoritarianism, interpretive stability, interpretive fidelity, substance/democratic process, specificity of policy, and availability of an alternate policymaker. īlack'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." ( May 2017) ( Learn how and when to remove this template message)Ī survey of judicial review in practice during the last three decades shows that judicial activism has characterized the decisions of the Supreme Court at different times. You may improve this article, discuss the issue on the talk page, or create a new article, as appropriate. The examples and perspective in this article deal primarily with the United States and do not represent a worldwide view of the subject. For example, Thomas Jefferson referred to the "despotic behaviour" of Federalist federal judges, in particular Chief Justice John Marshall. 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." Įven before this phrase was first used, the general concept already existed. The phrase has been controversial since its beginning.
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