Judicial activism

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Judicial activism refers to judicial rulings suspected of being based on personal or
political considerations rather than on existing law. It is sometimes used as an antonym
of judicial restraint.[1] The definition of judicial activism, and which specific decisions
are activist, is a controversial political issue, particularly in the United States. The
question of judicial activism is closely related to constitutional interpretation, statutory
construction, and separation of powers.

Origins of the term

Arthur Schlesinger Jr. introduced the term "judicial activism" in a January 1947
Fortune magazine article titled "The Supreme Court: 1947".[2]
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."[3]
Even before this phrase was first used, the general concept already existed. For
example, Thomas Jefferson referred to the "despotic behaviour" of Federalist federal
judges, in particular, John Marshall.[4]

Definitions
Black's Law Dictionary defines judicial activism as a "philosophy of judicial decisionmaking whereby judges allow their personal views about public policy, among other
factors, to guide their decisions."[5]
Political science professor Bradley Canon has posited six dimensions along which judge
courts may be perceived as activist:[6] 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.[citation needed]
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";[7] likewise, the solicitor general under George W. Bush,
Theodore Olson, said in an interview on Fox News Sunday, in regards 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."[8] Supreme Court Justice Anthony
Kennedy has said that, "An activist court is a court that makes a decision you don't
like."[9][10]

Debate[edit]
Detractors of judicial activism charge that it usurps the power of the elected branches of
government or appointed agencies, damaging the rule of law and democracy.[11]
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.
A third view is that so-called "objective" interpretation of the law does not exist.
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."[12]
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 which is not directly subject to the electorate, so that the majority cannot
dominate or oppress any particular minority through its elective powers.[13] 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.[14]
Moreover, they argue that the judiciary strikes down both elected and unelected official
action, in some instances acts of legislative bodies reflecting the view the transient
majority may have had at the moment of passage and not necessarily the view the same
legislative body may have at the time the legislation is struck down. Also, the judges
that are appointed are usually appointed by previously elected executive officials so that
their philosophy should reflect that of those who nominated them, that an independent
judiciary is a great asset to civil society since special interests are unable to dictate their
version of constitutional interpretation with threat of stopping political donations.

Examples[edit]
The following are cited as examples of judicial activism:

Brown v. Board of Education 1954 Supreme Court ruling ordering the

desegregation of public schools.[15]

Roe v. Wade 1973 Supreme Court ruling decriminalizing abortion.[16]

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
judges voted 5-4 to halt the recount of ballots in Florida and, as a result, George
Bush was elected President.[17]

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.[18][19]

Hollingsworth v. Perry 2013 decision by federal judge Vaughn R. Walker

overturning California's constitutional amendment to ban same-sex marriage.[20]

Contempt of Court and disqualification of Pakistani Prime Minister Yusuf Raza

Gilani by the Supreme Court of Pakistan chief justice Iftikhar Muhammad
Chaudhry.[21]

By geography[edit]
See also: Judicial activism in the European Union, Judicial activism in Canada, and
Criticism of the United States Supreme Court
While the term was first coined and is often used in the United States, it has also been
applied in other countries, particularly common law jurisdictions.

India[edit]
See also: Judicial Activism In India
India has a recent history of judicial activism, originating after the emergency in India
which saw attempts by the Government to control the judiciary. The Public Interest
Litigation was an instrument devised by the courts to reach out directly to the public,
and take cognizance though the litigant may not be the victim."suo motu" cognizance
allows the courts to take up such cases on its own. The trend has been supported as well
criticized.[citation needed] New York Times author Gardiner Harris sums this up as[22]
Indias judges have sweeping powers and a long history of judicial activism that would be all but
unimaginable in the United States. In recent years, judges required Delhis auto-rickshaws to convert
to natural gas to help cut down on pollution,[23][24] closed much of the countrys iron-ore-mining
industry to cut down on corruption and ruled that politicians facing criminal charges could not seek
re-election. Indeed, Indias Supreme Court and Parliament have openly battled for decades, with
Parliament passing multiple constitutional amendments to respond to various Supreme Court rulings.

All such rulings carry the force of Article 39A of the Constitution of India,[25] although
before and during the Emergency the judiciary desisted from "wide and elastic"
interpretations, termed Austinian, because Directive Principles of State Policy are nonjusticiable. This despite the constitutional provisions for judicial review and B R
Ambedkar arguing in the Constituent Assembly Debates that "judicial review,
particularly writ jurisdiction, could provide quick relief against abridgment of
Fundamental Rights and ought to be at the heart of the Constitution."[26]
Fundamental Rights as enshrined in the Constitution have been subjected to wide
review, and have now been said to encompass a right to privacy, right to livelihood and
right to education, among others. The 'basic structure' of the Constitution has been
mandated by the Supreme Court not to be alterable, notwithstanding the powers of the

Legislature under Article 368.[25] This was recognized, and deemed not applicable the
High Court of Singapore in Teo Soh Lung v. Minister for Home Affairs.
Recent examples quoted include the order to Delhi Government to convert the Auto
rickshaw to CNG,[23] a move believed to have reduced Delhi's erstwhile acute smog
problem (it is now argued to be back)[27] and contrasted with Beijing's.[28]

Israel[edit]
The Israeli approach to judicial activism has transformed significantly in the last 3
decades, and currently presents an especially broad version of robust judicial review and
intervention.[29][30][31] Additionally, taking into consideration the intensity of public life in
Israel and the challenges that the country faces (including security threats), the case law
of the Israeli Supreme Court[32] touches on diverse and controversial public matters.