Judicial activism - Definition and Overview

The phrases "judicial activism" and "activist judges" in the United States, Australia 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.

Criteria for Accusation

Judges who are accused of "judicial activism" 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. 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. The feel 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.

Most of the criticism of judicial activism in the American corporate 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. Divisions can also break along partisan lines, as in the case of Bush v. Gore, which offended liberals.

Related Rulings

Controversial rulings in which judges broadly interpreted the Constitution and contrary to the contemporary public opinion:

• Goodridge et al. v. Department of Public Health overturned a Massachusetts law banning gay marriage
• Lawrence v. Texas struck down U.S. sodomy laws
• Bush v. Gore ruled unstandardized manual recounts in Dade County, Florida unconstitutional
• Loving v. Virginia invalidated anti-miscegenation laws and allowing interracial marriage
• Brown v. Board of Education desegregated public education
• Roe v. Wade declared the criminalization of abortion unconstitutional
• Griswold v. Connecticut decriminalized the use of contraceptives between married couples

Controversial ruling in which judges strictly interpreted the Constitution in accordance with the contemporary public opinion:

• Abrams v. United States deemed that the United States could criminalize anti-American speech
• Bowers v. Hardwick ruled the criminalization of private consensual sexual conduct constitutional
• Roth v. United States declared obscene material (at the time including sex education and contraceptive literature) unprotected by the First Amendment
• Plessy v. Ferguson decided racial segregation in public facilities constitutional
• Dred Scott v. Sandford declared Negroes inherently inferior to Whites and validated slavery

Marbury v. Madison was the first ruling establishing the powers of judicial review.