Judicial Activism

What is Judicial Activism?

Judicial activism is a political view that supports the Court's power to interpret laws while considering US or State Constitutions and the public's opinions at the time. A judge that rules based on political or personal reasoning has used judicial activism.

The term was coined by Arthur M. Schlesinger, Jr. in 1947 but was a general concept before that. However, it has been argued that the term hasn't been properly defined by Schlesinger or any other scholar.

During the early years of its usage, judicial activism was synonymous with civil rights activism. However, nowadays judicial activism is typically used as a criticism.

Conservative Judicial Activism

At the beginning of the 20th century, conservatives adopted judicial activism as a way to limit regulations by both the federal and state governments and protect property rights.

The first decade of the 21st century renewed conservative judicial activism. Conservatives, mainly Republicans, supported the Court's use of judicial activism to protect conservative constitutional values such as federalism and religious liberty. There has been a call for judicial engagement to protect the structures and rights written in the constitution, especially economic rights.

Arguments for Judicial Activism

Judicial activism is an important tool to correct injustices and promote social change. Since the legislature makes laws in favor of the majority, judicial activism provides protection against unjust laws for those in the minority. Many believe judicial activism is a crucial check against majoritarian tendencies found in the legislative branch. The civil rights era provides good examples of judicial activism in favor of minorities.

Those who support judicial activism believe that the meaning of the Constitution should be interpreted relative to the beliefs and values of society at the time. They argue that as time progresses there are situations arising that the Founding Fathers didn't anticipate, therefore judges need to use their judicial expertise to interpret existing laws and text.

Criticism of Judicial Activism

Critics believe that judicial activism will allow judges to gain more power and act in ways that harm democracy. If the judicial branch gains more power it would tip the power of checks and balances toward that branch of government.

Another criticism against judicial activism is that judges are not trained to interpret laws and are not familiar with enough fields to be able to make their interpretations legitimate. Additionally, judicial activism violates the stare decisis doctrine which requires the courts to follow precedent.

Of course, there is a potential to misuse judicial activism. If it is used too much, it could render many court rulings unenforceable and the public may not know which laws to obey if they are constantly overturned.

Examples of Judicial Activism

Judicial activism can occur in both liberal and conservative courts. The Warren Court (1953-1969) was the most liberal activist court and expanded civil rights and liberties, federal power, and judicial power. The Burger Court (1969-1986) was also a liberal activist court. It ruled on matters including abortion, capital punishment, and pornography. The Roberts Court (2005-present) has become the most conservative court. It has made rulings based on the judges' personal and political beliefs which include promoting conservative and business interests. The court is most known for overturning Roe v. Wade and striking down provisions of the Voting Rights Act of 1965.

Fig. 1 - The Warren Court is considered the most activist court in US history.

Brown v. Board of Education

The decision in Brown v. Board of Education (1954) is considered an activist decision because it ignored the doctrine of stare decisis by refusing to follow the precedent set by Plessy v. Ferguson (1896). The Warren Court found the "separate but equal" doctrine set by Plessy v. Ferguson to be unconstitutional and reversed over 50 years of precedent.

Pros and Cons of Judicial Activism

To have a deeper understanding of the debate around judicial activism, we will take a look at the pros and cons of the concept.

Pros

Judicial activism allows the Court to handle sensitive matters with care. This is illustrated by the Warren Court's handling of civil rights and liberties cases.

Judges can strike down laws they believe are unjust even if precedent says the law should be upheld. A good example of this would be Brown v. Board of Education.

Judicial activism allows judges to make rulings as they see fit, within the limits of the court's power, of course. Judges can raise the nation's trust in the judicial system by making decisions that are supported by the public opinion of the majority. It also allows judges to bypass any grey areas in laws like the Constitution.

The judicial branch can make and implement decisions faster than the legislative and executive branches. Therefore, using judicial activism is a guaranteed way to dole out justice and raise the public's trust in the judicial system.

Cons

In the US, the judicial branch is supposed to be independent and unbiased which is why their rulings are usually based on precedent. Judicial activism interferes with the judiciary's independence since judges can make rulings based on personal and political reasoning and can take into account public opinion on matters.

If the judiciary becomes dependent on public opinion, it may lead to a breakdown in the rule of law. People may rush to the courts when they cannot get their way. If arbitration is overused it will be hard to maintain public law based on rules and laws. The US would become more susceptible to mob justice.

Fig. 2 - A breakdown in the rule of law can lead to mob justice.

Deciding cases based on political and personal reasoning will cause confusion as new rulings will likely go against already set precedents. The parties will be confused as to which law or precedent applies and may only obey the one they feel benefits them the most.

Judicial activism could lead to bribery and corruption. If judges become dependent on public opinion it opens them up to lobbyists. Groups with more money and popularity are more likely to get rulings in their favor.