Judicial Activism:
A Phrase That Is Much Used and Little Understood
KAP
Political Science 2100: Liberal Democracy in America
Henry B. Stobbs, MFA
Associate in Instruction
Copyright Notice
Certain materials in this presentation are prepared
with the fair use exemption of the U.S. Copyright
Law and have been prepared with the multimedia
fair use guidelines and are restricted from further
use.
The Trouble with Polygeminus Grex
David Gerrold, writer, Joseph Pevney, Director. “The Trouble with Tribbles.”
Star Trek. 29 December, 1967 Episode 2x13… a Classic!
Harper Collins Dictionary of American
Government and Politics: the “making of new
public policies through the decisions of
judges”
Black’s Law Dictionary: A “[j]udicial philosophy
which motivates judges to depart from strict
adherence to judicial precedent in favor of
progressive and new social policies which are
not always consistent with the restraint
expected of appellate judges.”
The New Dictionary of Cultural Literacy:
Judicial activism is synonymous with the term
“broad construction”, a “theory of
interpretation of the Constitution that holds
that the spirit of the times, the values of
justices, and the needs of the nation may
legitimately influence the decisions of a court,
particularly the Supreme Court”
The Oxford Companion to American Law:
Judges have always struggled to “reconcile
their role as impartial legal actors, whose
rulings much rely on established principles of
law, with their place in the political sphere.”
… and the Trouble with Defining Judicial Activism
•
•
•
•
Inconsistency
Imprecision
Lack of specificity
Profusion: There are many thousands of law
journal articles on judicial activism – over 500
articles per year
• State and federal courts, sociologists, historians,
political scientists debate it on an ongoing basis
Justice Antonin Scalia’s Interpretation
• “Totally imprecise… it’s nothing but fluff.” The
phrase can serve as “a starting point for
meaningful conversation about the judicial
craft.”
Origins
Perhaps the first, and certainly seminal: 1947,
in an article for Fortune written by Arthur
Schlesinger Jr.
Kmiec’s Five Core Meanings
Judicial activism has occurred when a court has…
1. Invalidated an arguably constitutional action by
another branch
2. Failed to adhere to precedent
3. Legislated from the bench
4. Departed from accepted interpretive mythology
5. Engaged in result-oriented judging
Distinguishing Precedent
• Vertical Precedent: from a higher court –
judicial activism can occur if, for instance, a
federal court chooses to ignore a binding USSC
precedent
• Horizontal Precedent: From the court itself, or
a court at the same level – this is not judicial
activism
The Category of Precedent Matters.
• Constitutional : NO
• Common Law: NO
• Statutory : YES – Once a statute has been
interpreted by a court, that interpretation is
considered part of the statute itself
Legislating from the Bench
A strict definition: Requiring broad compliance
with detailed, forward-looking mandates that
affect many parties who are not before the
court.
– Mostly, judges just do what they are asked to do –
resolve a dispute
– Often, weak legislation forces judges to act in a
quasi-legislative manner
– Once a court has made a substantive decision, it
must give guidance about how to honor the
decision
Roe v. Wade: A Case to Consider
• Was the Court correct to find a constitutional
right to have an abortion? Maybe, maybe
not…
• Once the right had been found, the Court then
had to limit ambiguity by issuing guidance
regarding trimester benchmarks to set limits
on when an abortion could or could not be
allowed, restricted, or banned
Results-Oriented Judging
• Can you prove it?
• Are judges not human? Anyone who
professes to have no bias, no preference, no
policy orientation… that one is a liar or does
not understand human nature – see Madison
• Listen carefully to those charging “judicial
activism” – what are the specifics? What is
their motive?
Bibliography
Dulcinea Media Inc. “Arthur Schlesinger, Jr.” [Still photograph]. 2009,FindingDulcinea.com.
On-line. Available from Internet, http://www.findingdulcinea.com/features/multi-day/netprofiles/47-arthurschlesinger/features/0/image.jpg.jpg , accessed 8 March 2009.
Dean, John W. “What Exactly is Judicial Activism? The Charges Made Against the President’s
Judicial Nominees.” 17 June 2005 [Redaction]. On-line. Available from Internet,
http://writ.news.findlaw.com/dean/20050617.html , accessed 2 February 2007.
FreakingNews.com. “Pee-Wee’s Courthouse.” [Still photograph]. On-line. Available from
Internet, http://www.freakingnews.com/pictures/11000/Pee-Wee-11171.jpg, accessed 8
March 2009.
LuxuryHousingTrends.com.“Fur Ball tribbles.” [Still photograph]. On-line. Available from Internet,
http://www.luxuryhousingtrends.com/fur-balls-tribbles.jpg , accessed 8 March 2009.
Wikia.com. “The Trouble with Tribbles.” [Camera Still-frame]. On-Line. Available from Internet,
http://memory-alpha.org/en/wikia/The_Trouble_with_Tribbles_(episode), accessed 8 March
2009.