Legal Question in Constitutional Law in Indiana

constitution of india

What is judicial activism?

Asked on 9/13/07, 9:26 am

1 Answer from Attorneys

John Mitchell Interaction Law

Re: constitution of india

"Judicial activism" is a term people (usually politicians, activists and Fox News) use to describe judges who make rulings they do not like. Although the political right seems to make the most use of it (and since the Reagan era the term is used by Republican administrations to justify packing the federal courts with right-wing judges more willing to give corporations greater rights than human people), right-wing judges are, with increasing frequency, also being accused of judicial activism.

The term itself should not necessarily connote a judicial deficiency. The accusation implies that a judge has substituted his or her own political agenda to further the development of new legal norms not called for under the Constitution and laws of this country, but tends to be applied most when folks are upset that some bedrock principle, such as freedom of speech or freedom from government intrusion in religion, results in the freedom of others to engage in speech or religious activities that the person shouting "activism" would rather suppress.

But many appreciate having judges who understand fundamental concepts of "justice," "freedom" and the inalienable right to life, liberty and the pursuit of happiness, and are willing to interpret the laws and cases that come before them with this greater good in mind.

Liberal activists tend to interpret the laws and cases that come before them from those fundamental constitutional and democratic principles that place individual liberties and the Bill of Rights above the corporate profit motive, while conservative activists tend to be more ready (a) give for-profit corporations rights equal to flesh and blood humans and (b) accept creative arguments to open government loopholes around the Bill of Rights.

In the end, however, many public claims of judicial activism amount to name-calling by those who disagree with a judicial ruling, while perhaps the greatest use of the term is by organizations and political parties on the extreme right, who use it in a more abstract way to generate support for a presidential candidate who will appoint judges more to their liking. Typically, these campaigns to get judges that will "counter the current [abstract] judicial activism" finds financial support from the business community that wants greater freedom from accountability for their actions, and grass roots support from conservatives who have been taught that "judicial activism" is a bad thing.

Oddly, the most activist Supreme Court justices seem to be those appointed under the banner of "pure rule of law," which just goes to show that one person's activist is another person's "rule of law" judge, and vice versa.

If my response sounds biased, consider that further evidence that the "activism" is entirely subjective.

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Answered on 9/13/07, 11:14 am

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