Judicial activism
Judicial activism is a judicial philosophy that is sometimes referred to as "legislating from the bench." It is an exercise of judicial review and generally refers to the willingness of a judge to strike down legislative or executive actions regarding constitutional issues. Judicial restraint is generally thought of as the opposite of judicial activism.[1]
Matthew Schneider, a professor of law at Thomas M. Cooley Law School, defines judicial activism as "the theory under which judges may 'actively' interpret the law on a broad plane and are not necessarily constrained to relying on the sources and issues strictly before them."[2]
Background
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The term judicial activism was coined in a 1947 Fortune article by Arthur M. Schlesinger Jr., but seems to have existed as a general concept before that.[1] In the 2008 article An Intellectual History of Judicial Activism, Roger Craig Green argues that the term was never adequately defined—not by Schlesinger or any scholar since. He says that Schlesinger’s article did not explain what counts as activism, nor did it say whether it was generally perceived as being good or bad.[3]
An article by Keenan Kmiec says that in its early usage, it was sometimes used with a positive connotation akin to the term "civil rights activist." Despite this, the term has typically been used as a criticism, even in its beginning. Louis Pollak, a former judge of the U.S. District Court for the Eastern District of Pennsylvania, said in 1956, "It seems safe to say that most judges regard 'judicial activism' as an alien 'ism' to which their misguided brethren sometimes fall prey."[4]
Edward McWhinney, a former law professor at the University of Toronto, was one of the first scholars to focus on the term. He wrote two papers about the concept in the 1950s titled The Supreme Court and the Dilemma of Judicial Policy-Making and The Great Debate: Activism and Self-Restraint and Current Dilemmas in Judicial Policy-Making. McWhinney recognized the difficulties in applying the term broadly. He said, "A judicial attitude, such as [Justice] Black's favoring the restriction of state action interfering with speech-press liberties, may be activist qua speech but passivist qua the protections of states-rights and local self-determination in a federal system."[4] According to Kmiec, McWhinney "laid the groundwork for future scholars, and stands as a valuable, if unrecognized, early contribution to this difficult topic."[4]
See also
Footnotes
- ↑ 1.0 1.1 Encyclopedia Britannica, "Judicial activism," accessed December 10, 2015
- ↑ October 2008 white paper on the Michigan Supreme Court by Matthew Schneider
- ↑ Green, R. (2008) An Intellectual History of Judicial Activism. Selected Works
- ↑ 4.0 4.1 4.2 Kmiec, K. (2004) The Origin and Current Meanings of "Judicial Activism". California Law Review
