essay on judicial activism

A Summary of Why We Need More Judicial Activism

Seth Robertson

Mar 24, 2014, 8:31 AM

By Suzanna Sherry, Herman O. Loewenstein Professor of Law

In this piece, Suzanna Sherry summarizes her essay, “Why We Need More Judicial Activism.” The full version of the essay will appear in a collection Sherry has co-edited with Giorgi Areshidze and Paul Carrese to be released in 2014 by SUNY Press. Sherry wrote this summary for the quarterly legal journal Green Bag , which devoted part of its summer 2013 edition to articles commenting on her essay. She characterizes the essay as “a rhetorical call to arms and an embrace of judicial activism.”

Too much of a good thing can be bad, and democracy is no exception. In the United States, the antidote to what the drafters of the Constitution called “the excess of democracy” is judicial review: unelected, life-tenured federal judges with power to invalidate the actions of the more democratic branches of government. Lately, judicial review has come under fire. Many on both sides of the political aisle accuse the Supreme Court of being overly activist and insufficiently deferential to the elected representatives of the people. Taking the Constitution away from the courts—and giving it back to the people—has become a rallying cry. But those who criticize the courts on this ground misunderstand the proper role of the judiciary. The courts should stand in the way of democratic majorities, in order to keep majority rule from degenerating into majority tyranny. In doing so, the courts are bound to err on one side or the other from time to time. It is much better for the health of our constitutional democracy if they err on the side of activism, striking down too many laws rather than too few.

In this forthcoming essay defending judicial activism, I begin by defining two slippery and often misused concepts, judicial review and judicial activism, and briefly survey the recent attacks on judicial activism. I then turn to supporting my claim that we need more judicial activism, resting my argument on three grounds. First, constitutional theory suggests a need for judicial oversight of the popular branches. Second, our own constitutional history confirms that the founding generation—the drafters of our Constitution—saw a need for a strong bulwark against majority tyranny. Finally, an examination of constitutional practice shows that too little activism produces worse consequences than does too much. If we cannot assure that the judges tread the perfect middle ground (and we cannot), it is better to have an overly aggressive judiciary than an overly restrained one.

Judicial review is not judicial supremacy. Judicial review allows courts an equal say with the other branches, not the supreme word. Courts are the final arbiter of the Constitution only to the extent that they hold a law unconstitutional, and even then only because they act last in time, not because their will is supreme. If judicial review is simply the implementation of courts’ equal participation in government, what, then, is judicial activism? To avoid becoming mired in political squabbles, we need a definition of judicial activism with no political valence. Judicial activism occurs any time the judiciary strikes down an action of the popular branches, whether state or federal, legislative or executive. Judicial review, in other words, produces one of two possible results: If the court invalidates the government action it is reviewing, then it is being activist; if it upholds the action, it is not.

Under that definition, and because the Court is not perfect, the question becomes whether we prefer a Supreme Court that strikes down too many laws or one that strikes down too few. Many contemporary constitutional scholars favor a deferential Court that invalidates too few. I suggest that we are better off with an activist Court that strikes down too many.

As many scholars have previously argued, judicial review is a safeguard against the tyranny of the majority, ensuring that our Constitution protects liberty as well as democracy. And, indeed, the founding generation expected judicial review to operate as just such a protection against democratic majorities. A Court that is too deferential cannot fulfill that role.

More significant, however, is the historical record of judicial review. Although it is difficult to find consensus about much of what the Supreme Court does, there are some cases that are universally condemned. Those cases offer a unique lens through which we can evaluate the relative merits of deference and activism: Are most of those cases—the Court’s greatest mistakes, as it were—overly activist or overly deferential? It turns out that virtually all of them are cases in which an overly deferential Court failed to invalidate a governmental action.1

When the Court fails to act—instead deferring to the elected branches—it abdicates its role as guardian of enduring principles against the temporary passions and prejudices of popular majorities. It is thus no surprise that with historical hindsight we sometimes come to regret those passions and prejudices and fault the Court for its passivity.

Ideally, of course, the Court should be like Baby Bear: It should get everything just right, engaging in activism when, and only when, We the People act in ways that we will later consider shameful or regrettable. But that perfection is impossible, and so we must choose between a Court that views its role narrowly and a Court that views its role broadly, between a more deferential Court and a more activist Court. Both kinds of Court will sometimes be controversial, and both will make mistakes. But history teaches us that the cases in which a deferential Court fails to invalidate governmental acts are worse. Only a Court inclined toward activism will vigilantly avoid such cases, and hence we need more judicial activism.

1 The essay lists the following as universally condemned cases (in chronological order): Bradwell v. State , 16 Wall. (83 U.S.) 130 (1873); Minor v. Happersett , 21 Wall. (88 U.S.) 162 (1874); Plessy v. Ferguson , 163 U.S. 537 (1896); Abrams v. U.S. , 250 U.S. 616 (1919); Schenck v. U.S. , 249 U.S. 47 (1919); Frohwerk v. U.S. , 249 U.S. 204 (1919); Debs v. U.S ., 249 U.S. 211 (1919); Buck v. Bell , 274 U.S. 200 (1927); Minersville School Dist. v. Gobitis , 310 U.S. 586 (1940); Hirabayashi v. U.S. , 320 U.S. 81 (1943); and Korematsu v. U.S. , 323 U.S. 214 (1944). Cases over which there is significant division, such as Roe v. Wade , 410 U.S. 113 (1973), and Lochner v. New York , 198 U.S. 45 (1905), are excluded. Dred Scott v. Sandford , 60 U.S. 393 (1856), and Bush v. Gore , 531 U.S. 98 (2000), are also excluded, on two grounds: They ultimately had little or no real-world effect; and they were products of a Court attempting to save the nation from constitutional crises, which is bound to increase the likelihood of an erroneous decision. Even if Dred Scott and Bush v. Gore are included, only two of 13 reviled cases are activist while 11 are deferential.

Reprinted from 16 Green Bag 2d 449 (2013), “Micro-Symposium: Sherry’s ‘Judicial Activism.’”

Explore Story Topics

• Uncategorized

• IAS Preparation
• UPSC Preparation Strategy
• Judicial Activism

Judicial Activism [Meaning, Concept, Cases & Criticism] - Indian Polity Notes

Judicial activism is a concept that originated in the US in 1947. It has been seen in India since the Emergency days. Judiciary and judicial activism are important topics to be understood by the aspirants for IAS Exam . The article will introduce you to judicial activism, its methods, significance and pros and cons. 

Judicial Activism – Know What It Means

The judiciary plays an important role in upholding and promoting the rights of citizens in a country. The active role of the judiciary in upholding the rights of citizens and preserving the constitutional and legal system of the country is known as judicial activism. This entails, sometimes overstepping into the territories of the executive. Candidates should know the judicial overreach is an aggravated version of judicial activism. 

Judicial activism is seen as a success in liberalizing access to justice and giving relief to disadvantaged groups, because of the efforts of justices V R Krishna Ayer and P N Bhagwati.

The Black’s Law Dictionary defines judicial activism as “judicial philosophy which motivates judges to depart from the traditional precedents in favour of progressive and new social policies.”

The concept of Public Interest Litigation (PIL) is always talked of when judicial activism is discussed.

Judicial Activism – Indian Polity:- Download PDF Here

Judicial Activism Methods

There are various methods of judicial activism that are followed in India. They are:

• Judicial review (power of the judiciary to interpret the constitution and to declare any such law or order of the legislature and executive void, if it finds them in conflict with the Constitution)
• PIL (The person filing the petition must not have any personal interest in the litigation, this petition is accepted by the court only if there is an interest of large public involved; the aggrieved party does not file the petition). 
• Constitutional interpretation
• Access of international statute for ensuring constitutional rights
• Supervisory power of the higher courts on the lower courts

Significance of Judicial Activism

• It is an effective tool for upholding citizens’ rights and implementing constitutional principles when the executive and legislature fails to do so.
• Citizens have the judiciary as the last hope for protecting their rights when all other doors are closed. The Indian judiciary has been considered as the guardian and protector of the Indian Constitution. 
• There are provisions in the constitution itself for the judiciary to adopt a proactive role. Article 13 read with Articles 32 and 226 of the Constitution provides the power of judicial review to the higher judiciary to declare any executive, legislative or administrative action void if it is in contravention with the Constitution.
• According to experts, the shift from locus standi to public interest litigation made the judicial process more participatory and democratic.
• Judicial activism counters the opinion that the judiciary is a mere spectator.

Judicial Activism Examples

It all started when the Allahabad High Court rejected the candidature of Indira Gandhi in 1973. 

• In 1979, the Supreme Court of India ruled that undertrials in Bihar had already served time for more period than they would have, had they been convicted.
• Golaknath case: The questions, in this case, were whether the amendment is a law; and whether Fundamental Rights can be amended or not. SC contented that Fundamental Rights are not amenable to the Parliamentary restriction as stated in Article 13 and that to amend the Fundamental rights a new Constituent Assembly would be required. Also stated that Article 368 gives the procedure to amend the Constitution but does not confer on Parliament the power to amend the Constitution.
• Kesavananda Bharati case: This judgement defined the basic structure of the Constitution. The SC held that although no part of the Constitution, including Fundamental Rights, was beyond the Parliament’s amending power, the “basic structure of the Constitution could not be abrogated even by a constitutional amendment.” This is the basis in Indian law in which the judiciary can strike down an amendment passed by Parliament that is in conflict with the basic structure of the Constitution.
• In the 2G scam, the SC cancelled 122 telecom licenses and spectrum allocated to 8 telecom companies on the grounds that the process of allocation was flawed.
• The Supreme Court rolled out a blanket ban on firecrackers in the Delhi – NCR area with certain exceptions in 2018.
• The SC invoked terror laws against alleged money launderer Hasan Ali Khan.

Aspirants should read about landmark cases related to the basic structure of the constitution , in the linked article.

Pros & Cons Of Judicial Activism

Judicial Activism in simple words means when judges interrupt their own personal feelings into a conviction or sentence, instead of upholding the existing laws. For some reason, every judicial case has a base of activism within it, so it is imperative to weigh the pros and cons to determine the aptness of the course of action being carried out. 

Pros associated with Judicial Activism India

• Judicial Activism sets out a system of balances and controls to the other branches of the government. It accentuates required innovation by way of a solution.
• In cases where the law fails to establish a balance, Judicial Activism allows judges to use their personal judgment.
• It places trust in judges and provides insights into the issues. The oath of bringing justice to the country by the judges does not change with judicial activism. It only allows judges to do what they see fit within rationalised limits. Thus, showing the instilled trust placed in the justice system and its judgments.
• Judicial Activism helps the judiciary to keep a check on the misuse of power by the state government when it interferes and harms the residents. 
• In the issue of majority, it helps address problems hastily where the legislature gets stuck in taking decisions.

Cons Associated with Judicial Activism 

• Firstly, when it surpasses its power to stop and misuse or abuse of power by the government. In a way, it limits the functioning of the government. 
• It clearly violates the limit of power set to be exercised by the constitution when it overrides any existing law. 
• The judicial opinions of the judges once taken for any case becomes the standard for ruling other cases.
• Judicial activism can harm the public at large as the judgment may be influenced by personal or selfish motives. 
• Repeated interventions of courts can diminish the faith of the people in the integrity, quality, and efficiency of the government.

Judicial Activism Criticism

Judicial activism has also faced criticism several times. In the name of judicial activism, the judiciary often mixes personal bias and opinions with the law. Another criticism is that the theory of separation of powers between the three arms of the State goes for a toss with judicial activism. Many times, the judiciary, in the name of activism, interferes in an administrative domain, and ventures into judicial adventurism/overreach. In many cases, no fundamental rights of any group are involved. In this context, judicial restraint is talked about. 

Also read: PIL Under Scrutiny: RSTV – The Big Picture

Judicial Activism VS Judicial Restraint

As mentioned earlier, Judicial Activism is the role played by the judiciary to uphold the legal and constitutional rights of the citizens. Judiciary exercises its own power to implement or strike down the laws and rules that infringes the right of the citizens or is for the good of the society at large, whatever the case may be. 

While, on the other hand, Judicial Restraint is the second face of the coin. It is the polar opposite of activism which puts obligations on it to follow constitutional laws while implementing its duties. It encourages the judiciary to respect the laws or rules set out in the constitution. 

Judiciary has gained power with judicial activism as the judges can take up issue suo-motu wherever they think that constitutional laws are being violated. However, with judicial restraint, the same judiciary has to abide by the executive who is given the sole power to legislate for the public. 

Why is Judicial Activism needed?

• When the legislature fails to make the necessary legislation to suit the changing times and governmental agencies fail miserably to perform their administrative functions sincerely, it leads to an erosion of the confidence of the citizens in the constitutional values and democracy. In such a scenario, the judiciary steps into the areas usually earmarked for the legislature and executive and the result is the judicial legislation and a government by judiciary.
• In case the fundamental rights of the people are trampled by the government or any other third party, the judges may take upon themselves the task of aiding the ameliorating conditions of the citizens.
• The greatest asset and the strongest weapon in the armory of the judiciary is the confidence it commands and the faith it inspires in the minds of the people in its capacity to do even-handed justice and keep the scales in balance in any dispute.

Way forward in Judicial Activism

Judicial activism is a product fabricated solely by the judiciaries and not backed by the Constitution. When the judiciary surpasses the line of the powers set for it in the name of judicial activism, it could be rightly said that the judiciary then begins to invalidate the concept of separation of powers set out in the Constitution.

If judges can freely decide and make laws of their choices, it would not only go against the principle of separation of powers but will result in chaos and uncertainty in the law as every judge will start writing his own laws according to his fads and quirks.

Judicial exercise has to be respected to maintain a clear balance.

Making laws is the function and duty of the legislature, to fill the gap of laws and to implement them in a proper manner. So that the only work remaining for the judiciary is interpretations. Only a fine equilibrium between these government bodies can sustain the constitutional values.

Kickstart your UPSC 2024 Preparation with these notes and keep on revising for UPSC Prelims. 

Related Links:

UPSC Questions related to Judicial Activism

What is an example of judicial activism.

An example of judicial activism is the famous Kesavananda Bharati case.

What is the difference between judicial activism and judicial restraint?

Both are opposing concepts. While judicial activism talks about courts taking on a proactive role in ensuring and protecting citizens’ rights , judicial restraint encourages the judiciary to limit the exercise of their own power.

Is judicial activism good?

Judicial activism can be good if the intention of the court is to protect and preserve the rights of citizens, and not merely criticise the government.

Leave a Comment Cancel reply

Your Mobile number and Email id will not be published. Required fields are marked *

Request OTP on Voice Call

Post My Comment

IAS 2024 - Your dream can come true!

Download the ultimate guide to upsc cse preparation.

• Share Share

Register with BYJU'S & Download Free PDFs

Register with byju's & watch live videos.

What Is Judicial Activism?

Robert Daly / Getty Images

• U.S. Legal System
• History & Major Milestones
• U.S. Constitution & Bill of Rights
• U.S. Political System
• Defense & Security
• Campaigns & Elections
• Business & Finance
• U.S. Foreign Policy
• U.S. Liberal Politics
• U.S. Conservative Politics
• Women's Issues
• Civil Liberties
• The Middle East
• Race Relations
• Immigration
• Crime & Punishment
• Canadian Government
• Understanding Types of Government

• B.A., Politics, Brandeis University

Judicial activism describes how a judge approaches or is perceived to approach exercising judicial review . The term refers to scenarios in which a judge issues a ruling that overlooks legal precedents or past constitutional interpretations in favor of protecting individual rights and serving a broader social or political agenda.

Judicial Activism

• The term judicial activism was coined by historian Arthur Schlesinger, Jr. in 1947.
• Judicial activism is a ruling issued by a judge that overlooks legal precedents or past constitutional interpretations in favor of protecting individual rights or serving a broader political agenda.
• The term may be used to describe a judge's actual or perceived approach to judicial review.

Coined by historian Arthur Schlesinger, Jr. in 1947, the term judicial activism carries multiple definitions. Some argue that a judge is a judicial activist when they simply overturn a prior decision. Others counter that the primary function of the court is to re-interpret elements of the Constitution and assess the constitutionality of laws and that such actions should, therefore, not be called judicial activism at all because they are expected.

As a result of these varying stances, use of the term judicial activism relies heavily on how someone interprets the Constitution as well as their opinion on the intended role of the Supreme Court in the separation of powers.

Origins of the Term

In a 1947 Fortune magazine article, Schlesinger organized sitting Supreme Court justices into two categories: proponents of judicial activism and proponents of judicial restraint. The judicial activists on the bench believed that politics play a role in every legal decision. In the voice of a judicial activist, Schlesinger wrote: "A wise judge knows that political choice is inevitable; he makes no false pretense of objectivity and consciously exercises the judicial power with an eye to social results."

According to Schlesinger, a judicial activist views the law as malleable and believes that law is meant to do the greatest possible social good. Schlesinger famously did not take an opinion on whether judicial activism is positive or negative.

In the years following Schlesinger’s article, the term judicial activist often had negative implications. Both sides of the political aisle used it to express outrage at rulings that they did not find in favor of their political aspirations. Judges could be accused of judicial activism for even slight deviations from the accepted legal norm.

Forms of Judicial Activism

Keenan D. Kmiec chronicled the evolution of the term in a 2004 issue of the California Law Review . Kmiec explained that charges of judicial activism can be levied against a judge for a variety of reasons. A judge might have ignored precedent, struck down a law introduced by Congress , departed from the model another judge used for a finding in a similar case, or written a judgment with ulterior motives to achieve a certain social goal.

The fact that judicial activism does not have a single definition makes it difficult to point to certain cases that demonstrate a judge ruling as a judicial activist. In addition, the number of cases displaying acts of judicial re-interpretation increases and decreases based on how re-interpretation is defined. However, there are a few cases, and a few benches, that are generally agreed upon as examples of judicial activism.

The Warren Court

The Warren Court was the first Supreme Court bench to be called a judicial activist for its decisions. While Chief Justice Earl Warren presided over the court between 1953 and 1969, the court handed down some of the most famous legal decisions in U.S. history, including  Brown v. Board of Education , Gideon v. Wainwright , Engel v. Vitale , and Miranda v. Arizona . The Warren Court penned decisions that championed liberal policies that would go on to have a large impact on the country in the 1950s, 1960s, and on.

Examples of Judicial Activism

Brown v. Board of Education (1954) is one of the most popular examples of judicial activism to come out of the Warren Court. Warren delivered the majority opinion, which found that segregated schools violated the Equal Protection Clause of the 14th Amendment. The ruling effectively struck down segregation, finding that separating students by race created inherently unequal learning environments. This is an example of judicial activism because the ruling overturned Plessy v. Ferguson , in which the court had reasoned that facilities could be segregated as long as they were equal.

But a court does not have to overturn a case for it to be seen as activist. For example, when a court strikes down a law, exercising the powers given to the court system through the separation of powers, the decision may be viewed as activist. In Lochner v. New York (1905), Joseph Lochner, the owner of a bakeshop, sued the state of New York for finding him in violation of the Bakeshop Act, a state law. The Act limited bakers to working less than 60 hours per week and the state fined Lochner twice for allowing one of his workers to spend over 60 hours in the shop. The Supreme Court ruled that the Bakeshop Act violated the Due Process Clause of the 14th Amendment because it infringed on an individual's freedom of contract. By invalidating a New York law and interfering with the legislature, the court favored an activist approach.

Differentiating Between Judicial Activist and Liberal

Activist and liberal are not synonymous. In the 2000 presidential election , Democratic Party candidate Al Gore contested the results of more than 9,000 ballots in Florida that did not mark either Gore or Republican candidate George W. Bush. Florida's Supreme Court issued a recount, but Dick Cheney, Bush's running mate, called for the Supreme Court to review the recount.

In Bush v. Gore , the Supreme Court ruled that Florida's recount was unconstitutional under the Equal Protection Clause of the 14th Amendment because the state failed to institute a uniform procedure for the recount and handled each ballot differently. The court also ruled that under Article III of the Constitution, Florida did not have time to develop a procedure for a separate, proper recount. The court intervened in a state decision that affected the nation, taking an activist approach, even though it meant a conservative candidate—Bush—won the 2000 presidential election, proving that judicial activism is neither conservative nor liberal.

Judicial Activism vs. Judicial Restraint

Judicial restraint is considered the antonym of judicial activism. Judges who practice judicial restraint hand down rulings that strictly adhere to the “original intent” of the Constitution. Their decisions also draw from stare decisis , which means they rule based on precedents set by previous courts.

When a judge favoring judicial restraint approaches the question of whether a law is constitutional, they tend to side with the government unless the unconstitutionality of the law is extremely clear. Examples of cases where the Supreme Court favored judicial restraint include Plessy v. Ferguson and Korematsu v. United States . In Korematsu , the court upheld race-based discrimination, refusing to interfere with legislative decisions unless they explicitly violated the Constitution.

Procedurally, judges practice the principle of restraint by choosing not to take on cases that require constitutional review unless absolutely necessary. Judicial restraint urges judges to consider only cases where parties can prove that a legal judgment is the only means of solving a dispute.

Restraint is not exclusive to politically conservative judges. Restraint was favored by the liberals during the New Deal era because they didn’t want progressive legislation overturned.

Procedural Activism

Related to judicial activism, procedural activism refers to a scenario in which a judge's ruling addresses a legal question beyond the scope of the legal matters at hand. One of the most famous examples of procedural activism is Scott v. Sandford . The plaintiff, Dred Scott, was an enslaved man in Missouri who sued his enslaver for freedom. Scott based his claim to freedom on the fact that he had spent 10 years in an anti-slavery state, Illinois. Justice Roger Taney delivered the opinion on behalf of the court that the court did not have jurisdiction over Scott’s case under Article III of the U.S. Constitution. Scott’s status as an enslaved man meant that he was not formally a citizen of the United States and could not sue in federal court.

Despite ruling that the court did not have jurisdiction, Taney continued to rule on other matters within the Dred Scott case. The majority opinion found the Missouri Compromise itself to be unconstitutional and ruled that Congress could not free enslaved people in the Northern states. Dred Scott stands as a prominent example of procedural activism because Taney answered the principal question and then ruled on separate, tangential matters to further his own agenda of keeping slavery as an institution in the United States.

• Bush v. Gore , 531 U.S. 98 (2000).
• Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).
• " Introduction to Judicial Activism: Opposing Viewpoints ."  Judicial Activism , edited by Noah Berlatsky, Greenhaven Press, 2012. Opposing Viewpoints.  Opposing Viewpoints in Context.
• " Judicial Activism ."  Opposing Viewpoints Online Collection , Gale, 2015.  Opposing Viewpoints in Context.
• Kmiec, Keenan D. “The Origin and Current Meanings of 'Judicial Activism.'”  California Law Review , vol. 92, no. 5, 2004, pp. 1441–1478., doi:10.2307/3481421
• Lochner v. New York, 198 U.S. 45 (1905).
• Roosevelt, Kermit. “Judicial Activism.”  Encyclopædia Britannica , Encyclopædia Britannica, Inc., 1 Oct. 2013.
• Roosevelt, Kermit. “Judicial Restraint.”  Encyclopædia Britannica , Encyclopædia Britannica, Inc., 30 Apr. 2010.
• Schlesinger, Arthur M. "The Supreme Court: 1947." Fortune , vol. 35, no. 1, Jan. 1947.
• Scott v. Sandford, 60 U.S. 393 (1856).
• Roosevelt, Kermit.  The Myth of Judicial Activism: Making Sense of Supreme Court Decisions . Yale University Press, 2008.
• What Is Judicial Restraint? Definition and Examples
• What Is Originalism? Definition and Examples
• Top 5 Conservative Supreme Court Justices
• The Warren Court: Its Impact and Importance
• How Are Federal Judges Selected?
• What Is Judicial Review?
• 7 Important Supreme Court Cases
• 14th Amendment Summary
• Plessy v. Ferguson
• Browder v. Gayle: Court Case, Arguments, Impact
• Brown v. Board of Education
• US Supreme Court Retirement Benefits
• Dred Scott Decision: The Case and Its Impact
• What Is a Writ of Certiorari?
• A Biography of Supreme Court Justice Antonin Scalia
• Cooper v. Aaron: Supreme Court Case, Arguments, Impact

Selective Judicial Activism in the Roberts Court

Alan B. Morrison Lerner Family Associate Dean for Public Interest and Public Service Law; Professorial Lecturer in Law, George Washington University Law School

Alan B. Morrison [1]

The opinion in Dobbs v. Jackson Women’s Health Organization [2] does not use the phrase “judicial activism” to describe how the majority in Roe v. Wade [3] found a right to an abortion in the Constitution. However, in three places in the opinion, Justice Samuel A. Alito quoted Justice Byron R. White’s dissent in Roe , in which he accused the majority of exercising “raw judicial power” in striking down Texas’s prohibition on abortion, which is another way of accusing the majority of engaging in judicial activism. [4] Aside from those who would define a judicial activist as a judge whose decision they do not agree with, one could hardly dispute the assertion that, at the very least, the majority in Roe aggressively interpreted the Constitution to reach its conclusions. According to Justice Alito, the Roe majority egregiously erred, and “[i]t is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” [5]

Justice Alito’s opinion, one would believe that he and others on the Roberts Court believe strongly in having controversial policy judgments always be made by our elected representatives, instead of by judicial activists. That approach to judging is a defensible one, but, as this essay argues, the current majority of the Roberts Court has a very selective approach to judicial activism. Time and again, in a wide variety of subject areas, when the constitutional claim at issue aligns with the policy position of the political party of the President that nominated these Justices (i.e., the Republican party), they are every bit as activist as the Roe majority.

Justice Alito’s opinion has a built-in response. On page 1, he observes that “the Constitution makes no mention of abortion,” which he repeats with only slight variance on seven occasions. [6] His response would be that, in the other cases, in which the majority of the Roberts Court supported a limit on legislative actions, there was a word or a phrase that is “mentioned” in the Constitution, such as the “free exercise” of religion, the “freedom of speech,” the right “to keep and bear arms,” the prohibition on the “tak[ing]” of “private property,” or that, under Article I, Section 3, the President “shall take Care that the Laws be faithfully executed.” But, of course, the majority in Roe did point to the word “liberty,” which is in the Constitution; [7] it is just that Justice Alito did not read that word in the same (expansive) way that Justice Harry A. Blackmun did in Roe . According to Justice Alito, the flaw in Roe was that it examined the words in the Constitution at a “high level of generality,” which he concluded led to a vast expanse of rights protected by the Constitution. [8] In other words, the Dobbs majority rejected a constitutional right to abortion because the text of the Constitution did not support such an approach.

This essay argues that the majority of the Roberts Court has often latched on to a word or phrase “mentioned” in the Constitution, examined its meaning at a “high level of generality,” and reached a result that took the decision away from “the people’s elected representatives.” It has, however, done so only when the outcome supports the positions of the party of the Republican President who appointed those Justices. Of course, this selective judicial activism does not explain every constitutional decision, and this essay does not discuss every such ruling since John Roberts became Chief Justice in 2003. But the pattern is too consistent to admit of any conclusion other than that the Justices abhor judicial activism, except when it serves to produce the political goals that they support. Judicial activism may or may not be a proper way to understand the Constitution, but it should at least be applied evenly across all cases.

This examination of the cases proceeds in the following order. First, I review Washington v. Glucksberg , [9] the case that is at the heart of the Dobbs opinion and show that it need not be read to provide the door-closing impact on a due process argument that the majority embraces. Next, I turn to a sampling of the election-related cases and show that the Roberts Court has failed to follow the premises of Dobbs and has been an activist court when it suits the goals of the Republican Party, but not otherwise. Then I turn to the success of the Roberts Court in undermining the power of labor unions, by broad readings of the First and Fifth Amendments. In the final section, I point to other expansive readings of the Constitution by the Roberts Court that also coincide with the political goals of the party whose President appointed them.

One further word about the analysis of the cases below. In each of the cases, the majority opinion was lengthy, and it covered many arguments. There were always dissents and there were often concurrences. This essay does not attempt to discuss each decision in full. Instead, it will focus on what are the two central ingredients of Dobbs : (1) its conclusion that the text of the Constitution does not protect the right to an abortion or other rights in other cases; and (2) where the right at issue is not mentioned in the Constitution, the Court should defer to the views of the elected representatives. The question that is at the center of this essay is how closely the Roberts Court adhered to those principles in these other cases.

I. Washington v. Glucksberg  – The Basis of Dobbs

The backbone of Dobbs is the portion of the majority opinion in Washington v. Glucksberg , stating that in order for a right to be protected under the Due Process Clause, it must be “deeply rooted in this Nation's history and tradition” and “implicit in the concept of ordered liberty.” [10] The opinion was written by Chief Justice William H. Rehnquist, who was one of the two dissenters in Roe . The case involved a facial challenge to an assisted-suicide ban under which a “person is guilty of promoting a suicide attempt when he knowingly causes or aids another person to attempt suicide.” [11] However, another state law clarified that the “withholding or withdrawal of life-sustaining treatment” at a patient’s direction “shall not, for any purpose, constitute a suicide.” [12] In rejecting the claim of the three plaintiff-physicians, the Court identified a number of significant interests that supported the law, [13] while also recognizing the interests of individuals nearing death who were in serious pain and no longer wished to live.

Although the judgment in Glucksberg was unanimous, four Justices concurred only in the result. In addition, Justice Sandra Day O’Connor joined the majority opinion, but wrote a short concurrence that Dobbs does not mention, and that makes three important points. The first, as a reason for the Court not to step in, points out the difficulty in drawing lines as to what assistance is and is not appropriate: As the Court recognizes, States are presently undertaking extensive and serious evaluation of physician-assisted suicide and other related issues. In such circumstances, “the . . . challenging task of crafting appropriate procedures for safeguarding . . . liberty interests is entrusted to the ‘laboratory’ of the States . . . in the first instance.” [14] The second is that the states are already doing much to alleviate the end-of-life suffering of many patients:

There is no dispute that dying patients in Washington and New York can obtain palliative care, even when doing so would hasten their deaths. The difficulty in defining terminal illness and the risk that a dying patient’s request for assistance in ending his or her life might not be truly voluntary justifies the prohibitions on assisted suicide we uphold here. [15]

Third, Justice O’Connor pointed to a political dynamic regarding assisted suicide that is surely very different from the one that pertains to the debate over abortion:

Every one of us at some point may be affected by our own or a family member’s terminal illness. There is no reason to think the democratic process will not strike the proper balance between the interests of terminally ill, mentally competent individuals who would seek to end their suffering and the State’s interests in protecting those who might seek to end life mistakenly or under pressure. [16]

Justice Alito read Glucksberg as a door-closing ruling, so that, unless a right fell within the confines of being “deeply rooted” or “implicit in the concept of ordered liberty,” it would receive almost no constitutional protection. But as Justice O’Connor’s concurrence showed, it need not have been read that way. Moreover, because there was no sharp difference between the major political parties over the issue of assisted suicide, and because every Justice supported the result in Glucksberg , the political divide that is an inescapable element of the abortion debate did not affect the outcome there. But as I show, the political divide over many controversial issues discussed in this essay goes a long way toward explaining the aggressive assertion of other rights by the majority of the Roberts Court, in contrast to the approach they took to abortion in Dobbs .

II. The Election Cases

In Shelby County v. Holder, [17] the plaintiff challenged the provisions of the Voting Rights Act that required certain states and some of the subdivisions in other states to obtain pre-clearance by either the Department of Justice or a three-judge district court in the District of Columbia for any changes in their laws affecting voting, in order to protect against further loss of the rights of racial minorities. [18] The Act was first passed in 1965, and a challenge to it was rejected by the Supreme Court then, as were the lawsuits over four subsequent re-enactments, which included certain additions to the coverage of the pre-clearance requirement. [19] In Shelby County , the challenge was to the 2006 amendments, which had passed the House by a vote of 390 to 33 and the Senate by a vote of 98 to 0. [20]

The majority conceded that the Act was necessary when it was passed, but it concluded that there had been a vast increase in the ability of minorities to vote in the covered jurisdictions since 1965. [21] As a result, it decided that the law was no longer needed, and therefore its prior intrusions on the rights of state legislatures to pass their own voting laws could no longer be tolerated. In particular, the majority found fault with the formula in Section 4 that determined which states and localities were subject to pre-clearance, finding them to be out of date and not justified by that formula. [22]

To justify his conclusion that Section 4 was unconstitutional, Chief Justice Roberts cited two principles of law, neither of which appears in the text of the Constitution: “basic principles of federalism,” and the “principle that all States enjoy equal sovereignty.” [23] As for federalism, that is hardly a barrier because the Voting Rights Act relied on the Fifteenth Amendment, which was enacted specifically to prevent states from passing racially discriminatory voting laws and which gives Congress the authority to enforce it “by appropriate legislation.” Whatever weight federalism may have in other contexts, it surely can have very little here. As for the principle of “equal sovereignty,” those words do not appear in the Constitution, and whatever force that principle may have, it was not sufficient for pre-Roberts Court Justices to overturn the Act when it was previously before the Court. To the extent that there needed to be textual support for rejecting Section 4, it was plainly lacking.

As for the other principal justification for Dobbs —deference to the legislature— Shelby County was just the opposite. Although the majority went through the evidence adduced in the extension hearings before Congress, both leading up to the 2006 amendments and those before them, it concluded that Congress was, in effect, mistaken when it retained Section 4 because that provision was no longer necessary. Justice Ruth Bader Ginsburg in her dissent, joined by Justices Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan, explained in great detail why the majority was wrong and why the pre-clearance sections were still essential to prevent back- sliding and to counteract new forms of discrimination. [24] But for these purposes, the point is not who was right about necessity, but whether the majority did what Justice Alito said the Supreme Court should do and defer to the judgment of the elected legislature. Plainly not. Moreover, it is hardly a coincidence that the states that were covered before Shelby County are all Republican strongholds that are now in a position to solidify their control of the state legislatures and redistricting for the House of Representatives. [25]

In 1976, in Buckley v. Valeo , [26] the Court held that the First Amendment’s Free Speech Clause protected certain aspects of raising and spending money on campaigns for elected office, on the theory that money is essential to campaigning for elected office today. The decision nonetheless upheld limits on what individuals could contribute directly to candidates, but struck down limits on what candidates could spend, and freed up individuals to make independent expenditures in any amount that they chose, as long as they did not coordinate with the candidate.

Money is not mentioned in the First Amendment, but it is hard to quarrel with the Court’s conclusion regarding the vital role that it plays in the ability of candidates to get their messages out, which is surely one of the highest forms of political speech. On the deference side, the Court was rightly concerned that, if it deferred to the wishes of Congress, and severely limited the amount a challenger could spend, and it would thereby “handicap a candidate who lacked substantial name recognition or exposure of his views before the start of the campaign,” i.e., help incumbents who wrote the law setting the ceiling. [27]

Opponents of the parts of the law that the Court had sustained in Buckley sought to explore potential loopholes, and Congress responded with efforts to close them. One limit on campaign spending that had existed since 1907 was a ban on corporations making direct contributions to candidates or political parties, which had been expanded in 1947 to include independent expenditures. Most, but not all, states had similar rules regarding corporate spending when Citizens United v. Federal Election Commission , [28] came before the Roberts Court. Writing separately to concur in part and dissent in part, Justice John Paul Stevens pointed out that there were many ways that the case could have been decided for the plaintiff on narrow grounds, [29] but instead the majority reached out and overturned the principle that spending by for-profit corporations could be treated differently from spending by individuals. There is, of course, no mention of corporations making campaign expenditures in the First Amendment or any other place in the Constitution, nor is there any structural reason why the judgments of Congress and numerous state legislatures that campaign contributions by business corporations should be banned, or at least limited, should not be sustained, which are the two reasons why Dobbs rejected a constitutional basis for a right to an abortion. Furthermore, there can be no question as to the alignment between the outcome in Citizens United and the Republican party, because the Republican Leader in the Senate, Mitch McConnell, has been at the forefront of every recent challenge to campaign finance limitations. [30]

Just this term, in Federal Election Commission v. Cruz , [31] the Court further extended its willingness to strike down various forms of prophylactic measures designed to prevent actual corruption or the appearance of corruption in campaign financing. The provision at issue focused on money raised by federal candidates after they had won an election. It did not place any new limits on the amounts or sources of that money, but it did impose a cap of $250,000 on how much of the post-victory money could be used by candidates to pay off money that they had personally loaned to their campaigns, on the theory that the excess “campaign donations” would go right into the pockets of the winners, who would then be indebted to the donors for personally enriching them.

What makes this decision (written by the Chief Justice) so inconsistent with the “leave it to the elected representatives” theme in Dobbs is that this law was approved by the very same members of Congress who are likely to be most adversely affected by it. Thus, in contrast to some campaign finance laws, this provision would directly harm the members who voted for it. The reason is simple: The candidates who receive post-election contributions are typically only the winners of elections, and since most incumbents win re-election, their votes in support of this legislation were votes against self-interest, yet the Court said, in effect, we know better, and the law cannot stand.

However, the Roberts Court has been anything but activist when the result would injure the Republican Party, as it generally does in redistricting disputes. The Court’s ruling in Baker v. Carr [32] and the cases that followed it have found workable solutions to the problem of unequal numbers of residents in comparable legislative districts, by more-or-less strictly imposing a requirement of “one person, one vote.” [33] But the Justices have struggled and failed to solve the gerrymandering problem, in which, while the number of voters are equal, the lines have been drawn by partisan legislatures to produce outcomes that strongly favor the political party in power, generally, although not always, the Republican Party. It is not as if the Justices believe that partisan gerrymandering is constitutional; they concluded just the opposite in Vieth v.Jubelirer . [34] Instead, the Justice have held, most recently in Rucho v. Common Cause, [35] that they are incapable of devising a remedy that would not involve the Court in making the kind of political choices that federal courts are forbidden from making under the political question doctrine. [36]

Unlike the other cases, this one involves an excess of “judicial inactivism.” The problem, according to the Court, is its inability to draw lines in a manner that is judicially defensible and does not make the courts into political institutions. As the Chief Justice stated in his conclusion, “we have no commission to allocate political power and influence in the absence of a constitutional directive or legal standards to guide us in the exercise of such authority.” [37] But as Justice Kagan pointed out in her Rucho dissent, there are multiple ways that a court could review claims of partisan gerrymandering and at least strike down the most egregious among them. [38] Indeed, no court need actually draw the district lines, but instead it can send the case back to the legislature or other body charged with drawing the lines and order it do it again (and again) until they get it right, or at least not wrong. Attacking partisan gerrymandering does not require perfection, but it can surely produce re-drawn lines that do less harm to fundamental principles of democracy than do highly partisan gerrymanders, Democratic and Republican alike, as there were in Rucho’s two cases. More fundamentally, as Chief Justice John Marshall said in Marbury v. Madison , “it is a settled and invariable principle, that every right, when withheld, must have a remedy, and every injury its proper redress.” [39] And even if that Chief Justice overstated his point a little, he was surely correct in admonishing the courts that, when it comes to remedies, the perfect should not the enemy of the good, and at least the courts should be able to make the situation better, or less bad, than it was before.

Although not in a case involving election law, the Roberts Court (minus the Chief Justice) six months before Dobbs was overcome by another case of judicial inactivism. In Whole Women’s Health v. Jackson , [40] the majority refused to block the Texas law that created a system of exclusively private enforcement of its ban on all abortions after six weeks. The six-week ban plainly violated existing abortion law, although that is no longer true post- Dobbs . The author of the Texas law and the members of the Texas legislature that supported it embraced the fact that it was designed to chill doctors from performing abortions that were currently constitutionally protected by preventing any judicial review in federal court, with the only court review available in a case against a doctor who had violated the Texas law. As shown by the opinions of the Chief Justice Roberts [41] and Justice Sotomayor, [42] both dissents from the principal rulings, there were a number of paths to immediate federal-court review, although some would require extending existing doctrine in ways that had never been used before. But any extension would be necessary, because there had never been a law like this, whose principal goal was to deter conduct that was currently constitutionally protected. The majority did leave open one possible state-law means to obtain court review, but the Fifth Circuit, not surprisingly, referred the question to the Texas Supreme Court, which promptly closed that door. [43] The majority’s willingness to leave the Texas law in place can be explained (but not justified) by the fact that the Justices had already concluded, but not announced, that Roe was dead, and there was no reason to prolong its life.

III. Undermining Labor Unions

It is no secret that the Republican Party, as the party of business, has long opposed all efforts to strengthen the ability of workers to bargain collectively for wages and conditions of employment. In order for there to be vibrant labor unions, they must have the ability to require workers to pay agency fees (for those who do not wish to join the union) to support the union’s work on their behalf regarding wages, benefits, and other conditions of employment. Although most of the members’ mandatory dues and fees are spent to protect the economic interests of the workers, some unions used a portion of that money to support political, electoral, and social campaigns that not all members supported. In 1977, the Court in Abood v. Detroit Board of Education , [44] upheld the basic right of unions (in this case of public employees) to collect agency fees from those non-members that it represented. However, it also ruled that using any portion of those fees used for political expenditures violated the First Amendment rights of those who disagreed with the causes that the union leaders supported. It then required unions to set up rebate systems to accommodate those who chose not to be members, but who were required by law to pay their fair share of the non-political expenses of the union. The constitutional argument that prevailed for the objectors was that forcing workers to pay for political causes which they opposed was a form of compelled speech forbidden by the First Amendment. And while state legislatures for state employees had enacted laws requiring workers to pay dues or an equivalent, those laws did not specifically approve collecting and spending money for political and other purposes unrelated to collective bargaining. [45]

Abood and subsequent decisions left in place a system that, while not ideal for the unions, provided a tolerable accommodation. In addition, Congress in 1947, in the Taft-Hartley Act, had authorized states to enact “Right-to-Work” laws, under which individuals could not be required to join or even support a union as a condition of their employment, thus making it much harder for unions to organize and fund their activities on behalf of their members in Right-to-Work states. But the anti-unionists were not satisfied, and so they sought and obtained further relief from the Roberts Court. In Janus v. AFSCME , the Court, in another opinion by Justice Alito, following a series of cases in which the Abood rules gave increasing protection to objecting workers, extended the First Amendment to create a defense to workers who did not want to pay any money to support even the collective bargaining activities of all workers, overruling the part of Abood that sided with the union. [46]

The basis for the complaint was that the plaintiffs objected strongly to the positions that their union took in collective bargaining against the state, including those on behalf of the economic benefits for the workers that it represented. The Court concluded that the First Amendment protection extended to the right to oppose economic benefits that the union obtained for all the workers, and so the objecting plaintiffs did not have to pay their fair share of the costs of obtaining them. Although the Court eliminated the obligation of objectors to pay for any portion of the union’s collective bargaining activities, it did not lessen the union’s duty to treat all workers fairly, whether they contributed financially or not. There is, of course, no “constitutional right to free-ride” mentioned in the First Amendment, and the results are directly the opposite of what the elected representatives who enacted collective bargaining laws provided. [47] The result is just the opposite of the two principal bases in which the Dobbs opinion overturned Roe , but the anti-union outcome is exactly what the Republican Party wanted.

Another example involves the portion of the Fifth Amendment that prohibits governments from “taking private property for public purposes” without paying “just compensation.” [48] The Court has correctly realized that some intrusions other than the government acquiring ownership or seizing physical possession of a person’s land or other property may be so disruptive as to prevent the owner from being able to fully use it. On the other hand, the Court has also upheld laws that impose reasonable regulations on the way that owners may use their property. [49] Similarly, no one would doubt the right of the government to enter private property temporarily to assure that the owner is complying with generally applicable laws.

The issue in Cedar Point Nursery v. Hassid , was whether a California law that allowed union organizers to make limited visits to a farm to urge workers to join their union constituted the “taking” of the owner’s property in violation of the Fifth Amendment. [50] There was no claim that those visits actually interfered with the owner’s ability to engage in farming, that they deprived the owner of the use of any physical space while the organizers were on the premises, or that the owner suffered any monetary damage or loss of income from their presence (other than the possible loss of income if the workers organized and obtained higher wages). Nor was there a claim that the state permitted an unreasonably large number of visits by the organizers. According to the majority opinion of the Chief Justice, the repeated entrances constituted a trespass and hence an unconstitutional taking, even though the California legislators had reached a contrary conclusion and even though the state had “taken” nothing from the owner, other than the ability to exclude union organizers from using a small portion of the property for a short period of time. And, like the other cases, the California law was opposed by the business interests that support the Republican Party whose Presidents appointed the Justices who struck down the California law.

IV. Other Cases of the Roberts Court and Judicial Activism

In 2020 and 2021, the Roberts Court, in keeping with the Federalist Society wing of the Republican Party, moved ahead on a long-standing policy of theirs—giving greater power to the President over the administrative agencies under the “Unitary Executive” theory. In the first case, Seila Law v. Consumer Financial Protection Bureau , with the Chief Justice writing for the majority, the Court held that the statute that limited the ability of the President to remove the head of the Consumer Financial Protection Bureau (“CFPB”), except for good cause, was unconstitutional because it interfered with the ability of the President to carry out his constitutional obligation in Article I, Section 3 to “take Care that the Laws be faithfully executed.” [51]

There is no mention of the power to remove officers in either the Take Care or the Appointments Clauses, although that term is found in the Impeachment Clause. The director of CFPB and the other officers who have good cause requirements for removal are recent creations of Congress, and so there is no long-standing tradition that was offended when Congress specifically decided that no President should have the power to remove those officers at will. It is only at the highest level of generality that the text of the Take Care Clause can be said to create something approaching an absolute power of the President to remove those officers on the theory that, if he cannot, he will be held accountable for the maladministration of their agencies and thereby interfere with his Take Care responsibilities. [52] As for Justice Alito’s reliance on deference to the legislature in Dobbs , it is plain that Congress balanced the considerations for and against good cause removal and came to the opposite judgment from the one adopted by the Roberts Court.

At issue in a second case in which the Roberts Court relied on an expansive reading of the Constitution is United States v. Arthrex , [53] was a statute that assigned the duty to assess the validity of patents being challenged before the Patent and Trademark Office to administrative patent judges (“APJs”), who are appointed by the head of their department, the Secretary of Commerce. Relying again on the Take Care Clause, which does not “mention” patents or the use of administrative law judges, the Chief Justice concluded that the entire review process was invalid unless the decisions were made by, or subject to approval of, principal officers, [54] i.e., those who are appointed by the President with the advice and consent of the Senate, as set forth in the Appointments Clause. [55] However, that same Clause also allows Congress to enact laws providing for the appointment of “such inferior Officers as they think proper,” without Senate confirmation. Nevertheless, the Court concluded that it had the final say on whether an officer who performed certain functions had to be a principal officer, regardless of what Congress had decided in the law creating the office. In this instance, not only was there no textual basis for insisting on presidential control over basic administrative procedures, but the text of the Appointments Clause points in the direction of giving specific deference to Congress—“as they think proper”—when it assigns a duty to an inferior rather than a principal officer.

In addition to its expansive reading of the Free Speech Clause in Janus , the Roberts Court has also used that clause to advance other ends of the business community that the Republican Party generally supports. For example, consider Sorrell v. IMS Health, Inc . [56] When doctors write prescriptions, pharmacies keep records of the drugs prescribed and by which doctor. There is often more than one drug that a doctor can prescribe for a given ailment, and naturally drug companies would prefer that doctors prescribe one of their own. One way to increase the likelihood of that happening is for the company to send out representatives to visit doctors and try to sell them on the company’s products. Some doctors may say to a company representative that they prescribe a certain drug, but do not always follow through. One way that the companies can verify what a doctor is telling their salespeople is by gaining access to the records of the pharmacy, which will give the company a very good idea of each doctor’s prescribing practices.

Vermont decided that allowing pharmacies to provide such information to the drug companies was a bad idea, even though the practice did not give the companies any personal information about the identity of the patients. The doctors did not like being confronted with the records of their prescribing practice, and the Vermont legislature agreed with them, making it unlawful to provide that information. The data companies that collected the prescription information and sold it to the drug companies, claimed that the prohibition violated the First Amendment, and the Roberts Court agreed in Sorrell .

Although on its face, and according to the dissent of Justice Breyer, the Vermont law was no more than “a lawful government effort to regulate a commercial enterprise,” [57] that is not how the Roberts Court saw it. According to the majority, the law interfered with the free speech rights of the pharmacists, who wished to sell the prescription data, and the comparable rights to receive the information by the drug companies. The problem is not that freedom of speech is not mentioned in the Constitution; the problem is that the Court, in an effort to side with business at the expenses of doctors and others whom the Vermont legislature sought to protect, read the text at a high level of generality and greatly expanded the concept of freedom of speech to include basic economic regulation. By relying on the First Amendment, the Court was able to avoid a charge that they were relying on substantive due process (as in Roe ) to achieve their desired political result, which, to no one’s surprise, was the outcome favored by the Republican Party and its big business allies and opposed by the Obama administration.

The Roberts Court has also taken an expansive view of the Free Exercise Clause in the First Amendment, at least as applied to expanding the protections available to mainstream religions. Public education is an important responsibility of the states. The Court has long held that parents have a constitutional right to send their children to schools of their choosing, including religious schools, provided that the schools meet minimum state standards. Montana has a provision in its constitution that forbids the state from spending state funds to support religious schools. [58] Several years ago, the state decided that, for a variety of reasons, it needed to support private schools to supplement the state’s public secondary school system by providing for tax credits for the parents of students who attended certain eligible private schools. Consistent with the state constitution, no credits were available if the school was a religious-based one, and the denial of tax credits for donations to religious schools was challenged in Espinoza v. Montana Department of Revenue . [59] The Roberts Court sided with the three parents who argued that Montana was discriminating against religion, thereby interfering with the parents’ “free exercise” of their religion. From a text perspective, Montana did not interfere with the religious practices or beliefs of any person; it defended the case on the ground that the parents had no constitutional right to have the state subsidize the education of their children at a religious school. But the Roberts Court ruled that if the state were going to use tax credits to support private schools, it could not exclude otherwise qualified religious institutions, even though the state’s constitution and the wishes of the citizens of Montana were to the contrary. [60]

The Court continued on this broad reading of the Free Exercise Clause in Carson v. Makin, [61] handed down three days before Dobbs . At issue was a Maine law that provided funding to assist students in rural sections of the state that did not have a local public high school that they could attend to pay for private schools. The state had concluded that it did not wish to spend state funds to support any religious school, and the Roberts Court by a vote of 6-3 ruled that this exclusion was an unconstitutional incursion on the religious freedom of those otherwise eligible students who would rather attend a parochial school. The state did not, in the words of the First Amendment, “prohibit” any student from freely exercising their religious beliefs or interfere with any of their religious practices. Instead, it read the First Amendment, including its ban in the “establishment of religion,” to create a preferred status for religious schools so that states now must fund religious schools with tax dollars if they fund any private secondary education at all. Had Maine decided that bilingual schools or those that did not have competitive athletic teams were ineligible for state funding, those decisions would have been upheld, unlike religious schools that now have a preferred and non-textual place before the Roberts Court.

In the final area, there are two cases in which the Roberts Court has read the Constitution in an expansive manner to protect the right to bear arms in the Second Amendment. The first case, District of Columbia v. Heller , [62] was decided before three current members of the Roberts Court majority were appointed, but the other, New York State Rifle & Pistol Assn., Inc. v. Bruen , [63] was issued the day before Dobbs . Both rulings are further examples of an activist and non-textual interpretation of the Constitution when that approach serves the political ends of the Republican Party.

The extent of the protection of the right to bear arms in the Second Amendment has a significant ambiguity: How far does that right extend, and what deference should legislative determinations be given when states and localities seek to control the possession of certain arms in certain places? To begin, there is the introductory militia clause that is expressly included (mentioned) in that Amendment—“a well regulated Militia, being necessary to the security of a free State.” [64] Its scope was fully debated in the opinions in Heller and elsewhere. But for purposes of this essay, it only needs to be noted that the majority read the eleven words as functionally irrelevant. [65] Moreover, from the perspective of the second rationale for eliminating any constitutional basis for the right to an abortion in Dobbs —the lack of deference to the judgment of elected legislators—that was also present, but given short shrift in Heller . The District of Columbia’s judgment that handguns were a major source of crimes in that urban setting and that the District’s residents should be entitled to protect themselves in ways that other jurisdictions would find unnecessary, was simply disregarded because the “right” at issue was inconsistent with the Justices’ view of the role of privately owned firearms in our society— and that of the Republican Party. [66]

That approach was extended in Bruen where the plaintiffs objected to the requirement that a person seeking a permit to carry a concealed handgun in public had to show “proper cause,” which required more than an ordinary citizen’s concern for their safety. In siding with the challengers, the Court, by a 6-3 vote, established a new test by which all Second Amendment cases will be decided: If the practice was not regulated at the time of the Founding (or perhaps when the Fourteenth Amendment was adopted), and in a manner comparable to the law being challenged, the right to bear arms will prevail. [67] Thus, because New York City did not have a subway in 1789, and because there were no laws limiting the age at which firearms in that era could be owned or even possessed, state efforts to impose limits in those circumstances are likely to fail. Moreover, in contrast to Dobbs , which extolled the benefits of representative democracy, the Bruen majority was clear that while “judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate—it is not deference that the Constitution demands here” because the People struck the proper balance in the Second Amendment which are courts must follow. [68]

A word about the limitations of the claims made in this essay. First, United States v. Windsor [69] and Obergefell v. Hodges [70] are Roberts Court decisions in which the judicial activism side produced results contrary to the positions of the Republican Party. But there is an explanation for those outcomes that does not undermine the thesis of this essay: Justice Anthony Kennedy provided the deciding vote to strike down the laws in both cases that disfavored same sex couples, and he is no longer on the Court.

Second, the cases discussed in this essay do not include any criminal or statutory cases, which make up the bulk of the Court’s docket. And within the criminal docket, there are constitutional claims by defendants that may be viewed as seeking a result that some would see as judicial activist. My view is that including those cases would not alter the conclusions of this essay, but I recognize that further study of them might lead to another conclusion.

Third, I do not suggest that I have reviewed all of the constitutional decisions of the Roberts Court in civil cases or that they can all be explained in the manner described above. This essay examines only a few decisions, albeit important and controversial ones, and there are many others that may not fit this pattern, although not many that contradict it.

With those qualifications, I believe that the implicit charge against Roe —that it is a product of judicial activism—can also be made against many of the most important and most controversial decisions of the Roberts Court. If the charge of judicial activism can properly be based on a combination of an absence of textual support in the Constitution and a lack of deference to the decisions of the legislatures, then the Roberts Court has been as guilty of that charge on the same grounds that majority opinion in Dobbs found the decision in Roe to be.

The views expressed in this article are those of the author writing in their personal capacity. The views presented do not represent the American Constitution Society or its chapters.

Get Involved

Get ACS News and Updates

Find Your Local Chapter

Become a Member of ACS

• Share full article

Advertisement

Supported by

This Is What Judicial Activism Looks Like on the Supreme Court

In a dissent, two conservative justices invite a case to overturn a precedent on religion in the workplace that they dislike.

By Linda Greenhouse

Contributing Opinion Writer

The Supreme Court’s refusal this week to hear a case challenging a 44-year-old precedent on the obligation of employers to accommodate their employees’ religious needs seemed destined to escape public notice as just another of the thousands of petitions the court turns down without explanation every term (more than 90 this week alone).

But Justices Neil Gorsuch and Samuel Alito made sure that Small v. Memphis Light, Gas & Water didn’t simply disappear. They wrote an opinion dissenting from the denial of review, taking up the petitioner’s call to overturn a 1977 case called Trans World Airlines v. Hardison . They found nothing deficient about the appeal. “There is no barrier to our review and no one else to blame,” they wrote. “The only mistake here is of the court’s own making — and it is past time for the court to correct it.”

There is nothing particularly unusual about justices dissenting publicly from their colleagues’ refusal to hear a case. Nor is it rare for this particular precedent to be a target. Justice Alito has made a practice of calling for its overruling, joined in the past by Justice Clarence Thomas and more recently by Justice Gorsuch, on the ground that the decision misinterpreted federal anti-discrimination law and gave too little protection to employees whose obligations at work come into conflict with their obligations of religious observance.

Publishing a dissent of this sort is a kind of Supreme Court performance art. Dissenting justices want to set down a marker to identify an issue and solicit future attempts to garner the four votes required to accept a case. Chief Justice William Rehnquist disliked these dissents, viewing them as akin to washing the court’s linen in public. The practice, common under his predecessor, Chief Justice Warren Burger, gradually all but died away. Under his successor, Chief Justice John Roberts, it has come roaring back.

Although I know all this, something about this particular dissent, barely five pages long, jumped out at me. It left me with this thought: This is what judicial activism looks like.

To understand why requires a bit of background on the Hardison case. That 7-to-2 decision was an interpretation of Title VII of the Civil Rights Act of 1964, which bars discrimination in the workplace on account of race, sex or religion. (This was the statute the court interpreted last summer to bar employment discrimination against L.G.B.T.Q. individuals.) As part of the protection for religion, Title VII requires employers to “reasonably accommodate” an employee’s religious observance or practice as long as the accommodation does not impose “undue hardship on the conduct of the employer’s business.”

Congress did not define “undue hardship,” but in the Hardison case, the court did. The plaintiff, Larry Hardison, a TWA maintenance employee, was a member of the Worldwide Church of God who strictly observed that church’s Saturday Sabbath. He lacked the seniority to avoid occasional Saturday duty and brought a Title VII lawsuit when the airline failed to accommodate him. Rejecting his claim, the Supreme Court defined “undue hardship” as anything that imposed “more than a de minimis cost” on the employer. In his majority opinion, Justice Byron White said that to require employers to give an employee “the privilege of having Saturdays off” for religious reasons rather than for other kinds of reasons would amount to religious favoritism.

“The paramount concern of Congress in enacting Title VII was the elimination of discrimination in employment,” Justice White wrote. “In the absence of clear statutory language or legislative history to the contrary, we will not readily construe the statute to require an employer to discriminate against some employees in order to enable others to observe their Sabbath.”

That the two dissenters, Justices Thurgood Marshall and William Brennan, were the most liberal members of the court at that time is a reminder of the ideological realignment that the debate over church and state has undergone in the ensuing decades. Justice Marshall wrote that the decision was “deeply troubling, for a society that truly values religious pluralism cannot compel adherents of minority religions to make the cruel choice of surrendering their religion or their job.” The concern of the conservative majority was to avoid interpreting the statute in a way that ran up against the establishment clause , a provision of the First Amendment that the court’s current majority has taken giant steps toward effacing.

The case the court denied this week was nearly identical. Jason Small, a Jehovah’s Witness, was required by his religion to attend services on Wednesday nights and Sundays. He worked for a utility company in a position that required occasional mandatory overtime, and he used his vacation time to avoid conflicts. When the company denied his request to take a vacation day for Good Friday, he took the day off anyway, and was disciplined by losing two days’ pay. He sued on several grounds, including Title VII, and lost in Federal District Court in Memphis.

Affirming that decision, a three-judge panel of the United States Court of Appeals for the Sixth Circuit observed that Mr. Small had not directly challenged the company’s claim that his requested accommodation would have imposed an undue hardship. Two judges on the panel, Amul Thapar and Raymond Kethledge, who are among the circuit’s most conservative members, wrote a separate concurring opinion — in effect, concurring with themselves, with an explanation. “In the end, this case doesn’t involve a challenge to the ‘de minimis’ test,” they wrote. “But litigants should consider such challenges going forward.”

In Mr. Small’s appeal to the Supreme Court, his lawyers insisted that “even if he somehow failed to raise the issue as fully as the court below might have wished,” his case was still worthy of Supreme Court review and was a good vehicle for overturning the de minimis standard of the Hardison case. “If the undue hardship issue were somehow deemed forfeited, the court should proceed anyway, as there is no prejudice to any party or court,” the petition said.

Except that’s not how the Supreme Court works. There are rare exceptions, but generally the court refuses to take up questions that have not received a full airing in the lower court. In fact, Justices Alito, Thomas and Gorsuch conceded as much in February of last year, when they issued a statement “concurring in the denial” of a similar case because “this case does not present a good vehicle for revisiting Hardison.” Writing for all three, Justice Alito added , “But I reiterate that review of the Hardison issue should be undertaken when a petition in an appropriate case comes before us.”

One of those three, Justice Thomas, did not join this week’s dissent. Neither did the court’s other conservatives, Chief Justice Roberts and Justices Brett Kavanaugh and Amy Coney Barrett. Perhaps the obvious impatience of Justices Alito and Gorsuch, their eagerness to depart from the court’s usual practice in order to get their hands on a precedent they don’t like, was a step too far even for colleagues who most likely agree with them on the merits of the issue. (Without comment, the court this week also denied a second case on the same issue, an appeal from the United States Court of Appeals for the 11th Circuit, Dalberiste v. GLE Associates. The Hardison issue wasn’t cleanly raised in that case, either.)

The two justices’ bring-me-a-case plea qualifies as judicial activism in my book, but it’s just one piece of the picture. The Hardison decision was a case of statutory interpretation, meaning that if Congress believed that the Supreme Court got Title VII wrong in 1977, it has had 44 years to amend the statute.

That is not a far-fetched scenario. Congress added the religious accommodation provision to Title VII in 1972 in response to an appeals court decision that upheld a company’s refusal to permit an employee to take Sundays off. Congress passed the Civil Rights Act of 1991, which President George H.W. Bush signed into law, to overturn several conservative Supreme Court decisions that imposed obstacles to Title VII litigation.

Has Congress never considered repudiating the court’s de minimis interpretation of “undue hardship”? Actually, it has: Bills to do just that were introduced in 1994, 1996, 1997, 1999, 2002, 2005, 2007 and 2010. They failed to pass. So now Justice Alito and his one or two allies want to do Congress’s work for it. Someday, maybe soon, when the right case arrives, he may find the additional allies he needs.

That’s what judicial activism looks like.

The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips . And here’s our email: [email protected] .

Follow The New York Times Opinion section on Facebook , Twitter (@NYTopinion) and Instagram .

Linda Greenhouse, the winner of the 1998 Pulitzer Prize, writes on alternate Thursdays about the Supreme Court and the law. She reported on the Supreme Court for The Times from 1978 to 2008, and is the author of the forthcoming "Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court." 

Judicial Activism and Restraint in the United States Essay

Introduction, arguments for judicial activism, arguments against judicial activism, conclusions.

Since 1947, judicial activism has been a hotly debated topic targeting judiciary and American judges. Besides being a permanent discussion, it has been studied and debated at length. In order to fully understand this concept, it is imperative to give it a proper cogency and greater coherence. To begin with, judicial activism may be defined as judges’ habit of diverting from the existing law when making rulings due to skewed political or personal interests. A critical example is whereby judges make rulings against those who have constitutional right by disregarding a formal model of law and basing their judgments mainly on pre-conceived ideologies. This essay explores the arguments for and against judicial activism and also examines potential conflicts between USA Patriotic rights and the 4 th Amendment rights.

The rubric for measuring judicial activism is wide and well elaborated in a continuum of dealings by federal judges such as wrong interpretation of accepted methodology, using a policy that is substantive, adjusting interpretations and doctrines that had been established earlier on as well as inventing theories and rights that are new in order to replace existing ones. Besides, judges can exceed court’s jurisdiction while exercising their powers, fail to follow precedent and be inconsistent when issuing an opinion. They can also take sides when making decisions, use remedial powers that are broad and disregard the originalist view when interpreting the constitution. Other conceptions regarding judicial activism emanating from politicians, media, lay people and the scholarly class include issuing holdings that are not minimalist but maximalist alongside failing to follow traditional modes of judgment similar to their predecessors.

Arguments that support and oppose judicial activism may be based on how individuals have decried judicial activism, praised and attacked with equal strength some of the opinions made by judges. Today, the populace and politicians in general continue to display a continuum of reactions. This may not be a strange practice at all since it has been embraced from the beginning. For instance, the move to have chief justice Earl Warren removed from the bench in the 1950’s by the Supreme Court triggered a dramatic response from the public (Pothier, 2010). The then case was involving relations of the church, state and desegregation. The judges’ decisions were influenced by the public. From that time to date, the tendency of overstepping the legal mandate and constitutional provisions by federal judges has increased. As a result, they have been sharply criticized by the public. However, they still enjoy significant support from various quarters and hence continue to invalidate laws and remain without abdication. Indeed, the constitution continues to suffer great violation from these judges.

Judicial activism has been greatly criticized. However, it is worth observing that these criticisms have played an integral role of bringing to birth, judicial independence which is also is more robust. The constitution guarantees protection to federal judges whether they make unpopular rulings that are also illegal or not. Even though criticisms against judicial activism may be seen as a potential threat to judicial independence, Article III of the ruling constitution indicates clearly that based on their “good behavior” they are guaranteed positions in their offices for as long as they live (Pothier, 2010). Basically, their authority is absolute in whatever decisions they make. In addition, certain important individuals have set up a framework that protects and offer independence to the judiciary system from impartial undermining of decisions made by people, politicians and the government. In fact, the law permits impartial administration of justice and interpretation of laws for purposes of preservation of character, property and life of every individual (Yung, 2011). In this sense, the 4 th Amendment can be used by judges to protect citizens from unreasonable harassments which are seemingly allowed by USA patriotic Act allows. It is important to underscore the fact that while USA Patriotic Act may be presenting itself as the best method for combating terrorism, it infringes on individual rights that have been protected by the 4 th Amendment.

Judicial activism is important in guarding individual’s rights, the constitution and minority parties in the community from gross oppressions and innovations from the government that spell danger to certain individuals. An example is the US Patriotic Act, which allows search of financial and medical records, communications, e-mail, telephone conversations and so on of foreign individuals. As a matter of fact, it infringes on the privacy of individuals and depicts them as potential criminals (Pothier, 2010). Ideally, I agree with the 4 th Amendment that restricts such capitalist practices by allowing searches to be done through a court order supplied with enough information. Impartial decisions made by the activist judges to protect the rights of individuals from the influence of conjectures of USA Patriotic Act, which are ill motivated, puts as a prerequisite the independence of judges.

To start with, even though it is a requisite for judges to be independent in order to protect minority parties and individuals from oppressions and government innovations, judicial activism by all means need to be criticized and abolished. Even though there is an inescapable tension between USA Patriotic Act and the 4 th Amendment, judicial restraint must be exercised by the federal judges (Yung, 2011). During decision making, federal judges should be guided by principles surrounding judicial restraint so that factors that are extraneous don’t influence them (Pothier, 2010). They should be able to draw a line between what is legally sound and what is popular. In this sense, whatever decisions they make must be relevant and sound. They should not be irrelevant, ill-motivated and bent towards public approbation. The law itself provides solutions that are fair and just and therefore, personal views, views from an au corant moral philosopher, personal opinions, preferences and policies should neither be a basis nor source of consultation for any judge making decisions when construing a statute or the constitution (Yung, 2011).

Judicial restraint is important since it ensures that judicial powers don’t exceed their scope. When set free, judicial activism plays a role of retaliation through unpopular ways of applying the law. Federal judges use their own preferred policies to make judgments and twist the law in favor of certain people. Consequently, they lose their accountability and their jurisdiction is stripped from them. For instance, in 2005, Marriage Protection Act was created to bar the federal court from looking into the controversial issue of the same-sex marriage and its constitutionality (Pothier, 2010). Again, another Act referred to as Detainee Treatment Act of 2006 stripped federal courts of jurisdiction due to the perception the public had over it of judicial activism.

To sum up, it is true that federal courts survive under great pressure from external forces that influence decisions in cases they handle. Even though American judges still preserve their integrity in their bid to make good judgments, it is worth noting how negative effects springing from criticisms coming from the elite influence their decisions. Solving this problem requires proper strategies and measures to take away fear that federal judges have of the appointing authority, public pressure, political influence and the senate. The judges should be independent if they are to be impartial in their rulings.

Pothier, D. (2010). Power Without Law: The supreme court of Canada, the marshal decisions, and the failure of judicial activism. Dalhousie Law Journal, 33(1), 189- 197.

Yung, C. (2011). Flexing judicial muscle: an empirical study of judicial activism in the federal courts. Northwestern University Law Review, 105(1), 1-60.

• Chicago (A-D)
• Chicago (N-B)

IvyPanda. (2022, March 30). Judicial Activism and Restraint in the United States. https://ivypanda.com/essays/judicial-activism-and-restraint-in-the-united-states/

"Judicial Activism and Restraint in the United States." IvyPanda , 30 Mar. 2022, ivypanda.com/essays/judicial-activism-and-restraint-in-the-united-states/.

IvyPanda . (2022) 'Judicial Activism and Restraint in the United States'. 30 March.

IvyPanda . 2022. "Judicial Activism and Restraint in the United States." March 30, 2022. https://ivypanda.com/essays/judicial-activism-and-restraint-in-the-united-states/.

1. IvyPanda . "Judicial Activism and Restraint in the United States." March 30, 2022. https://ivypanda.com/essays/judicial-activism-and-restraint-in-the-united-states/.

Bibliography

IvyPanda . "Judicial Activism and Restraint in the United States." March 30, 2022. https://ivypanda.com/essays/judicial-activism-and-restraint-in-the-united-states/.

• Increase in the Use of Distressing Patient Seclusion/Restraint
• The COVID-19 Bill Proposal by President Biden
• Employee’s Duties and Restraint of Trade
• Ethics Behind Technology Implementation in Justice System
• Personal Dilemma Issue in Law Practice
• Ethical Issues in Criminal Justice
• Changing Punishment at the Turn of the Century
• Police Approach of Security Depends on Skin Color and the Accent of the Tongue

Judicial Activism in the United States

Cite this chapter.

• Kenneth M. Holland  

309 Accesses

3 Citations

Within two decades of the republic’s inception, some two hundred years ago, the Supreme Court of the United States emerged as a powerful political actor. In the 1950s and 1960s, however, the Court boldly undertook a new mission that resulted in judicial policy-making of unprecedented scope and impact. The Court and its controversial policies provoked a political backlash that contributed to five victories for the Republican Party in the next six presidential elections. Yet, despite the efforts of Republican presidents, who since 1968 have replaced seven of the nine Supreme Court justices, the activism of the Court has waned, if at all, only slightly, and, of equal importance, has percolated down the judicial hierarchy to the lower federal and state appellate and trial courts. The proper role of judicial power in a democracy continues to be one of the most contentious contemporary political issues in the United States at the same time that the activism of its courts is emulated by more and more democratic nations throughout the world.

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

• Available as PDF
• Read on any device
• Instant download
• Own it forever

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Unable to display preview.  Download preview PDF.

John Jay, the first chief justice (1789–95), served simultaneously as U.S. ambassador to England, and Oliver Ellsworth, the third chief justice (1796–99), for six months was both ambassador to France and chief justice. For a discussion of Jay and Ellsworth’s subservience to the executive see Alpheus T. Mason, ‘Extra-Judicial Work for Judges: The Views of Chief Justice Stone,’ Harvard Law Review 67 (1953), 193–216.

Article   Google Scholar  

Ralph Lemer, ‘The Supreme Court As Republican Schoolmaster,’ in Philip B. Kurland (ed.), Supreme Court Review (Chicago: University of Chicago Press, 1967).

Google Scholar  

Alexis de Tocqueville, Democracy in America , ed. Phillips Bradley (New York: Knopf, 1945), p. 280

Remer Tyson, ‘Mandela Offers More Details of a New South Africa,’ The Detroit Free Press (19 June 1990), pp. 1A, 4A.

Henry P. Johnston (ed.), The Correspondence and Public Papers of John Jay (New York: Putnam’s 1890–93), HI, pp. 486–9.

See Marshall’s opinions in Fletcher v. Peck , 6 Crunch 87 (1810) and Ogden v. Saunders , 12 Wheaton 213 (1827) and Edward S. Corwin, The ‘Higher Law’ Background of American Constitutional Law (Ithaca, NY: Cornell University Press, 1955).

Gregory A. Caldeira and Donald J. McCrone, ‘Of Time and Judicial Activism: A study of the U.S. Supreme Court, 1800–1973,’ In Stephen C. Halpem and Charles M. Lamb (eds), Supreme Court Activism and Restraint (Lexington, MA: D. C. Heath, 1982), pp. 103–27.

Roscoe Pound, ‘Mechanical Jurisprudence,’ Columbia Law Review 8 (December 1908): 605–23.

For an argument that courts should forgo the assumption of such duties, see Nathan Glazer, ‘Should Judges Administer Social Services?’ The Public Interest 50 (Winter 1978): 64–80.

Howard Abadinsky, Law and Justice (Chicago: Nelson-Hall, 1988), pp. 81–2.

Gary L. McDowell, Equity and the Constitution: The Supreme Court, Equitable Relief, and Public Policy (Chicago: University of Chicago Press, 1982), p. 4.

Donald Horowitz, ‘The Courts as Guardians of the Public Interest,’ Public Administration Review 37 (March-April 1977): 150.

Arthur Selwyn Miller, Toward Increased Judicial Activism: The Political Role of the Supreme Court (Westport, Conn.: Greenwood Press, 1982), pp. 259–60.

Abram Chayes, The Role of the Judge in Public Law Litigation,’ Harvard Law Review 89 (May 1976): 1281–316.

Quoted by Lyle Denniston, ‘Justice Brennan Quits Court,’ The Burlington (Vermont) Free Press , 21 July 1990, p. 1 A.

John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971).

Michael J. Perry, The Constitution , 77ze Courts, and Human Rights: An Inquiry Into the Legitimacy of Constitutional Policymaking by the Judiciary (New Haven, Conn.: Yale University Press, 1982), p. 99.

Richard G. Stevens, ‘Felix Frankfurter,’ in Morton J. Frisch and Richard G. Stevens (eds), American Political Thought , 2nd edn (Itasca, II.: Peacock Publishers, 1983), pp. 337–60.

See Robert H. Bork, The Tempting of America: The Political Seduction of the Law (New York: The Free Press, 1990).

Nathan Glazer, ‘Towards an Imperial Judiciary?’ The Public Interest 41 (Fall 1975): 104–23;

Lino A. Graglia, Disaster by Decree: The Supreme Court's Decisions on Race and Schools (Ithaca: Cornell University Press, 1976);

Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (Cambridge: Harvard University Press, 1977).

Donald L. Horowitz, The Courts and Social Policy (Washington: The Brookings Institution, 1977);

R. Shep Melnick, Regulation and the Courts: The Case of the Clean Air Act (Washington, D. C.: The Brookings Institution, 1983).

Henry J. Abraham, Justices and Presidents: A Political History of Appointments to the Supreme Court , 2nd edn (New York: Oxford University Press, 1985).

See G. Alan Tarr, ‘Civil Liberties Under State Constitutions,’ The Political Science Teacher 1 (Fall 1988): 8–9.

G. Alan Tarr and Mary Cornelia Porter, State Supreme Courts in State and Nation (New Haven, Conn.: Yale University Press, 1988).

Mark Trumbull, ‘School-Funding Equity Emerges As Key State Constitutional Issue,’ The Christian Science Monitor , 27 April 1990, pp. 1, 2.

Roger C. Cramton, ‘Judicial Law-making and Administration,’ Public Administration Review 36 (September-October 1976): 552. Others have concluded that increased judicial activism is related to the decline of ‘consensus politics,’ an important social factor contributing to increased resort to the courts.

Guy Paul Land, ‘Judicial Process and the Decline of Twentieth-Century American Liberalism,’ Harvard Journal of Legislation 16 (Spring 1979): 283–300.

Morris Fiorina, Congress: Keystone of the Washington Establishment , 2nd edn (New Haven, CT: Yale University Press, 1989).

George C. Greanias and Duane Windsor, ‘Is Judicial Restraint Possible in an Administrative Society? As Government Grows and Congress Shows a Reluctance to Address Difficult Issues, the Courts Have Been Forced to Assume a New and Dangerous Pose.’ Judicature 64 (April 1981): 400–13.

Download references

You can also search for this author in PubMed   Google Scholar

Editor information

Editors and affiliations.

Memphis State University, USA

Kenneth M. Holland ( Professor of Political Science ) ( Professor of Political Science )

Copyright information

© 1991 Kenneth M. Holland

About this chapter

Holland, K.M. (1991). Judicial Activism in the United States. In: Holland, K.M. (eds) Judicial Activism in Comparative Perspective. Palgrave Macmillan, London. https://doi.org/10.1007/978-1-349-11774-1_2

Download citation

DOI : https://doi.org/10.1007/978-1-349-11774-1_2

Publisher Name : Palgrave Macmillan, London

Print ISBN : 978-1-349-11776-5

Online ISBN : 978-1-349-11774-1

eBook Packages : Palgrave Political & Intern. Studies Collection Political Science and International Studies (R0)

Share this chapter

Anyone you share the following link with will be able to read this content:

Sorry, a shareable link is not currently available for this article.

Provided by the Springer Nature SharedIt content-sharing initiative

• Publish with us

Policies and ethics

• Find a journal
• Track your research

Essay on Judicial Activism

Introduction.

According to the interpretation of the law, the judiciary is one of the critical branches of government that assists in upholding the Constitution and emphasizes that the rule of law is adhered to. Nonetheless, the role of that judiciary has been under investigation, with some suggesting that judges have become too powerful. As a result, they participate in judicial Activism through legislating from the bench. However, it is worth noting that judicial Activism is a controversial issue. It is commonly related to liberal judges who are viewed to be using their authority to develop progressive policy goals.

Nevertheless, over recent years, conservative justices and judges have been indicted for taking part in Activism, particularly with respect to reversing the precedents and challenging the power of elected institutions. Moreover, the idea of Activism has been challenged, with some suggesting that it is typically a means of denouncing court decisions that one fails to agree with instead of a valuable difference between various perspectives of the law. Thus, the idea of Activism can still help recognize decisions that may be going beyond the bounds of traditional judicial practice. This essay seeks to traverse what comprises a proper role for the judiciary, what it means for a court to be activist or reveal judicial restraint, and how both liberals and conservatives participate in judicial Activism.

The role of the judiciary

The Constitution of the United States offers the judiciary authority to interpret the law and ensure that it is applied consistently and fairly. The judiciary is also accountable for making sure that the actions of the branches, legislative and executive, conform with the Constitution and the law. This is commonly regarded as the perspective of separation of power (Stein, 2019). However, the judiciary’s role is also controversial in the united states. While the debate lies on the role of judges in interpreting and applying the law, some people argue that judges should actively participate in modeling the law and developing social progress. At the same time, on the hand, others claim that judges should limit themselves in the process of interpretation of the law as it is documented and refrain from using authority to develop their individual policy goals.

Moreover, the judiciary’s role is to review the constitutionality of laws. According to (Prendergast, 2019), it has the authority to review the legality of the laws passed by the legislative branch. The judiciary’s role is to strike down the law violating the Constitution. This means that judges should not be biased or impacted by personal influences or political considerations. The Constitution should direct them. An appropriate role of the judiciary also directs that judges should limit themselves from participating in legislating from the bench or even developing policy decisions. This means that as judges interpret the law and apply it to particular cases, they should restrain from using their power to establish new laws or inflict their individual beliefs on the public (Dembi, 2022).

What it means for a court to be activist

A court being described as an activist means it normally engages in the decision-making process that exceeds the typical interpretation of the law. Rather, it decides based on social and political considerations (Cross & Lindquist, 2006). This means that a court is described as an activist if it uses its power to create new laws or develop policy decisions instead of just interpreting the existing laws. This often entails the court taking a more offensive stance in interpreting the Constitution in such a way that develops a certain social or political theme. For instance, a court can be explained as an activist if it brings down a law that has broadly been acceptable by the Constitution over the years or even if it is directed by political considerations instead of legal analysis. This can certainly be controversial when the decision withdraws an existing legal precedent.

However, there exists criticism of activist courts, with critics claiming that they subvert the democratic process and the elected leaders’ power. They suggest that courts restrain themselves from interpreting and applying the law as it is documented and not using their power to inflict individual beliefs or even develop political agendas (Emerson, 2022). Moreover, the proponents of activist law suggest that they are crucial to developing social progress and ensuring that the rights of vulnerable groups or the minority are safeguarded. They argue that courts are accountable for interpreting the law in a way it conforms with evolving social values and changing ideas of justice.

Judicial Activism is commonly linked to liberal judges, who are viewed as more likely to use their authority to develop progressive policy goals. Nonetheless, over recent years, conservative judges have also been convicted of taking part in judicial Activism since they have been more prevalent in overturning previous cases and challenging the power of elected institutions of government (Wynn, 2021).

Judicial restraint

Judicial restraint refers to the notion that judges should limit themselves to the interpretation and application of the law to the facts of the case at hand (Balkin, 2019). This means that they should refrain from using their authority to develop their policy goals or replace their ruling with that of the legislature. This perspective is often related to conservative judges and justices. Nonetheless, even the judges who recommend judicial restraint identify that there are extents to this perspective.

Role of the Concept of Activism

Considering that both conservatives and liberals participate in judicial Activism, some have challenged the neediness of the idea of Activism. The concept typically condemns the court’s decisions that one fails to agree with instead of a meaningful differentiation between various law perspectives. In contrast, others argue that Activism is still crucial as it assists us in recognizing decisions that may exceed the bounds of traditional judicial practice.

The role played by the judicial in the United States is interpreting the law and making sure that it is applied unbiasedly. The question of what comprises an appropriate role of the judiciary has been debated over the years. Additionally, judicial Activism and judicial restraint are frequently used to explain various perspectives of the law. Judicial Activism is linked with liberal judges and justices, while judicial restraint is related to conservative judges. Over the years, both conservatives and liberals have been suspected of taking part in judicial Activism. The fact is that an appropriate role of the judiciary entails striking a neutrality between interpreting the law and honoring the difference of powers between the three main branches of government. However, it is crucial to note that the judiciary is obligated to uphold individual rights and ensure that the Constitution is honored.

Balkin, J. M. (2019). Why Liberals and Conservatives Flipped on Judicial Restraint: Judicial Review in the Cycles of Constitutional Time.  Texas Law Review , pp.  98 , 215. https://heinonline.org/HOL/LandingPage?handle=hein.journals/tlr98&div=12&id=&page=

Cross, F. B., & Lindquist, S. A. (2006). The Scientific Study of Judicial Activism.  Minnesota Law Review ,  91 , 1752. https://heinonline.org/HOL/LandingPage?handle=hein.journals/mnlr91&div=51&id=&page=

Dembi, D. (2022, May 8).  Understanding Separation of Powers through Judicial Behavior . Papers.ssrn.com. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4103821

Emerson, B. (2022). Liberty and Democracy through the Administrative State: A Critique of the Roberts Court’s Political Theory.  Hastings Law Journal ,  73 , 371. https://heinonline.org/HOL/LandingPage?handle=hein.journals/hastlj73&div=12&id=&page=

Prendergast, D. (2019). The judicial role in protecting democracy from populism.  German Law Journal ,  20 (02), 245–262. https://doi.org/10.1017/glj.2019.15

Stein, R. A. (2019). What Exactly Is the Rule of Law?  Houston Law Review ,  57 , 185. https://heinonline.org/HOL/LandingPage?handle=hein.journals/hulr57&div=7&id=&page=

Wynn, J. A. (2021). When Judges and Justices Throw out Tools: Judicial Activism in Rucho v. Common Cause.  New York University Law Review ,  96 , 607. https://heinonline.org/HOL/LandingPage?handle=hein.journals/nylr96&div=17&id=&page=

Cite This Work

To export a reference to this article please select a referencing style below:

Related Essays

Adventist development and relief agency (adra), social media and how it affects younger generations, biopsychosocial factors in late and very late adulthood, suicide and mental issues among the members of the military, the impact of inadequate mental health services on indigenous populations., rti tier two interventions, popular essay topics.

• American Dream
• Artificial Intelligence
• Black Lives Matter
• Bullying Essay
• Career Goals Essay
• Causes of the Civil War
• Child Abusing
• Civil Rights Movement
• Community Service
• Cultural Identity
• Cyber Bullying
• Death Penalty
• Depression Essay
• Domestic Violence
• Freedom of Speech
• Global Warming
• Gun Control
• Human Trafficking
• I Believe Essay
• Immigration
• Importance of Education
• Israel and Palestine Conflict
• Leadership Essay
• Legalizing Marijuanas
• Mental Health
• National Honor Society
• Police Brutality
• Pollution Essay
• Racism Essay
• Romeo and Juliet
• Same Sex Marriages
• Social Media
• The Great Gatsby
• The Yellow Wallpaper
• Time Management
• To Kill a Mockingbird
• Violent Video Games
• What Makes You Unique
• Why I Want to Be a Nurse
• Send us an e-mail

Essay on “Judicial Activism” for CSS, PMS and Judiciary Examination

• May 7, 2021
• Essay for CSS PMS and Judiciary Exam

This is an essay on “Judicial Activism” for CSS, PMS, and Judiciary examination. Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint. According to Merriam-Webster’s Dictionary of Law, Judicial Activism defines as “The practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or· in opposition to supposed constitutional or legislative intent”.

Essay on “Judicial Activism”

Black’s Law Dictionary defines judicial activism as “A philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usu. with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent.”

David Strauss of the University of Chicago Law School has argued that judicial activism can be narrowly defined as one or more of three possible things:

• Overturning laws as unconstitutional
• Overturning judicial precedent
• Ruling against a preferred interpretation of the constitution

In practice, a speaker may use the term “activist judge” to mean that a judge has simply made an important decision that the accusing speaker disagrees with. When used in this way, the term “activist judge” is little more than a term of political criticism.

While there are many who are willing to use this hot button term as a simple protest of disagreement, this is not the most common usage, nor the most common understanding, of the term. As a general usage, “activist judge” is used to describe a judge who actively and knowingly subverts, misuses, grossly misinterpret, ignores, or otherwise flaunts the law and or legal precedence due to personal opinion, be that opinion ideological, religious, philosophical, or other.

The theory of judicial behavior that .advocates basing decisions not on the judicial precedent but on achieving what the court perceives to be. for the public welfare, or what the court determines to be fair and just on the facts before it.

Judicial activism is a term used by political scholars to describe a tendency by judges to consider outcomes, attitudinal preferences, and other public policy issues in interpreting applicable existing law. Formally, judicial activism is considered the opposite of judicial restraint, but it is also used pejoratively to describe judges who endorse a particular agenda.

The charge that judges are going beyond their appropriate powers and engaging in making law and not merely interpreting it. Against this position is placed the ideal of judicial restraint, which counsels judges to resist the temptation to influence public policy through their decisions and decrees.

Judicial activism is not a prisoner to any particular ideological or political viewpoint; it can be conservative as well as liberal. A long period of American history was characterized by conservative judicial activism, by a Supreme Court unwilling to allow the states or Congress to pass legislation that would regulate social or economic affairs .

Typically such legislation laws governing child labor, workers’ hours, and so forth would be invalidated as violations of _the Constitution’s Commerce Clause or Contracts Clause or of the judicially created doctrine of “liberty of contract” under the Due Process Clause of the Fourteenth Amendment (see Contract, Freedom of).

The best-known example of conservative judicial activism is Lochner v. New York (1905), a case in which th_e Court invalidated New York’s law regulating the hours bakers could work as a  violation of “liberty of contract,” a part of the doctrine of substantive due process under the Fourteenth Amendment.

More recently the Court has been subject to criticism that it is engaging in liberal activism. This has been especially the case since the advent of the Warren Court and the revolution that it wrought in civil liberties, but the charge has continued through the Burger Court and into the· Rehnquist Cour. The argument is that in the name of expanding the “rights” a majority of the justices find agreeable, the Cour is twisting the Constitution by disregarding the original meaning of the Due Process and Equal Protection Clauses in order to reach dewed results.

The distinction between judicial activism and judicial restraint is closely related to the distinction between interpretivism, and non-interpretivism and the question of whether it is ever appropriate for judges to import new meaning into the old words of the Constitution.

A campaign against judicial activism became a hallmark of presidencies as ideologically diverse as those of Franklin D. Roosevelt, Richard M. Nixon, and Ronald Reagan.

Those who subscribe to judicial restraint contend that the role of judges should be scrupulously limited; it is their job merely to say what the law is, leaving the business of lawmaking where it properly belongs, with legislators and e.xecutives. Under no circumstances, moreover, should judges allow their personal political values and policy agendas to colour their judicial opinions.

This view holds that the original intent of the authors of the Constitution and its amendments is knowable, and must guide the courts. Detractors of judicial activism charge that it usurps the power of the legislature, thereby diminishing the rule of law and democracy. They argue that an unelected judicial branch has no legitimate grounds to overrule policy choices of duly elected representatives, absent a real conflict with the constitution.

Defenders of judicial prerogatives say that many cases of “judicial activism” merely exemplify judicial review and that courts must uphold the constitution and strike down any status that violates the constitution. They say that it is the duty of courts to protect minority rights and to uphold the law, notwithstanding the political sentiments of the day and that constitutional democracy is far more than just majority rule.

However, detractors of judicial activism retort that neither democracy nor the rule of law can exist when the law is merely what judges say it should be.

Arthur Schlesinger Jr. introduces the term “judicial activism” to the public in a Fortune magazine article in January 1947.

The methods by which judges engage in judicial activism, according to critics who make this accusation, include the following:

• Overturning legislation passed by an elected legislature using an interpretation of the constitution that critics believe is not clearly mandated or implied by the constitutional text;
• Ruling against the text or intent of a statue, using what critics argue is an incorrect or overreaching interpretation;
• Ruling against judicial precedent in a way that critics hold is a radical or unjustified departure from accepted interpretation;
• Holding legislation unconstitutional based on what critics view as a clearly flawed precedent;
• Selectively using obscure case law or foreign law, in preference to what is seen by critics as more pertinent case law or statutory law and
• Use by state courts of a single subject rule to nullify legislation or state constitutional amendments, in what critics say is a questionable manner.

“Measured. motions seem to me right, in the main, for constitutional as well as common law adjudication. Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable,” in the context of arguing that the Court in Roe v. Wade displaced too much-existing state abortion law too quickly.

President of USA Ronald Reagan criticized “judicial activism” as “I intend to go right on appointing highly qualified individuals of the highest personal integrity to the bench, individuals who understand the danger of short-circuiting the electoral process and disenfranchising the people through judicial activism”.

Justice David Souter wrote; “We, therefore, have a clear question about which institution, a legislature or a court, is relatively more competent to deal with an emerging issue as to which facts currently unknown could be dispositive. The answer has to be, for the reasons already stated, that the legislative process is to be preferred …

The experimentation that should be out of the question in constitutional adjudication displacing legislative judgments is entirely proper, as well as highly desirable when the legislative power addresses an emerging issue like assisted suicide.” Judicial activism is when courts do not confine themselves to reasonable interpretations of laws, but instead create law.

Alternatively, judicial activism is when courts do not limit their ruling to the dispute before them, but instead establish a new rule to apply broadly to issues not presented in the specific action. “Judicial activism” is when judges substitute their own political opinions for the applicable law, or when judges act as a legislature (legislating from the bench) rather than like a traditional court. In so doing, the court takes for itself the powers of Congress, rather than limiting itself to the powers traditionally given to the judiciary.

Legislating from the bench is a good way to describe judicial activism. Judicial activism occurs when a Judge or Justice decides an issue based on personal or political ideology or pressure from special interests instead of abiding by the Constitution and/or the previous precedent. The United States has a system of checks and balances to ensure that one branch of the federal government will not become too powerful. Under the separation of powers doctrine, only Congress has the power to legislate. Judicial activism violates that separation of powers by effectively creating a new law that often affects the entire nation instead of settling the particular case at hand.

Chief Justice Marshall said:

“The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended to, we must decide if it is brought before us. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other is treason to the Constitution”.

Chief Justice of the United States once said, “We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution”.

You may also like these:

• View other Essay Topics
• CSS Guide for Beginners for 2021
• PMS Guide: Syllabus, Paper Pattern Compulsory & Optional Subjects
• CSS Past Paper Subject Wise 
• LLB Past Papers

I am interested in writing content for educational purpose.

Most relevant ▼

• Essay on “Innovations are Never-ending Headways” for CSS, PMS
• Essay on “Single National Curriculum Pave the Way for the Desired Ideological Integration in Pakistan Society” for CSS, PMS
• Essay on “Single National Curriculum Paving the Way for the desired ideological integration in Pakistan Society” for CSS, PMS
• Essay on “The cost of inaction is greater than the cost of action” for CSS, PMS
• Essay on “Inflation – A Result of Poor Economic Policies or a Part of Global Economic Woes” for CSS, PMS
• Essay on “Democracy without Justice is Tyranny” for CSS, PMS
• Essay on “Man is Born Free but Everywhere he is in Chains” for CSS, PMS
• Essay on “Power Corrupts: Absolute Power Corrupts Absolutely” for CSS and PMS
• Essay on the “Role of Social Media in the Modern World” for CSS and PMS
• Essay on “Terrorism and its Socioeconomic Implications” for CSS, and PMS

Essay on Judicial Activism in India

Students are often asked to write an essay on Judicial Activism in India in their schools and colleges. And if you’re also looking for the same, we have created 100-word, 250-word, and 500-word essays on the topic.

Let’s take a look…

100 Words Essay on Judicial Activism in India

Introduction.

Judicial Activism refers to the proactive role played by the judiciary in promoting justice. In India, it has become a significant part of the legal system.

The term Judicial Activism originated in the United States. In India, it emerged in the late 1970s and has been instrumental in protecting the rights of citizens.

Role in India

In India, Judicial Activism has played a key role in addressing social issues. It has helped in enforcing the rights of the marginalized and ensuring environmental protection.

Judicial Activism in India has been a powerful tool for justice. It is a testament to the judiciary’s commitment to uphold the rights of citizens.

250 Words Essay on Judicial Activism in India

Judicial activism in India refers to the proactive approach of the judiciary in safeguarding the rights of citizens and promoting justice. It is the use of judicial power to articulate and enforce what is beneficial for society at large.

The Emergence of Judicial Activism

The emergence of judicial activism in India can be traced back to the 1970s, a period marked by gross human rights violations during the Emergency. The judiciary, recognising its responsibility, began to interpret laws and constitutional provisions in a manner that enhanced its powers, thereby ensuring the protection of citizens’ rights.

The Role of Public Interest Litigation

Public Interest Litigation (PIL) has been a significant instrument of judicial activism in India. PIL has transformed the judiciary from a passive institution to a proactive one, reaching out to the disadvantaged and marginalised sections of society. It has also enabled the judiciary to take suo-moto cognizance of issues.

Impact and Criticism

Judicial activism has led to landmark judgments that have significantly impacted Indian society and governance. However, it has also faced criticism for overstepping its constitutional mandate, leading to a debate over the separation of powers.

While judicial activism has been a powerful tool for social change in India, it’s crucial to strike a balance between judicial activism and judicial restraint. This ensures that the judiciary does not encroach upon the domains of the legislative and executive branches, preserving the delicate balance of power enshrined in the Constitution.

500 Words Essay on Judicial Activism in India

Introduction to judicial activism in india.

Judicial activism in India refers to the proactive role played by the judiciary in promoting justice, upholding the rule of law, and protecting the rights of citizens. It is a dynamic process that has evolved over time, reflecting the judiciary’s response to societal needs and changing circumstances.

The Genesis of Judicial Activism

The roots of judicial activism in India can be traced back to the post-independence era. The Indian Constitution, framed in 1950, laid the foundation for an independent judiciary. However, the concept of judicial activism became prominent in the 1980s, when the Supreme Court started interpreting the Constitution in a more liberal and expansive manner. This was done to ensure the realization of fundamental rights, especially for the marginalized sections of society.

Landmark Cases Signifying Judicial Activism

Several landmark judgments signify the rise of judicial activism in India. The case of Kesavananda Bharati vs. State of Kerala (1973) established the doctrine of the ‘basic structure’ of the Constitution, which cannot be altered by the Parliament. This case marked a significant shift towards judicial activism, ensuring the preservation of the fundamental essence of the Constitution.

Another significant case was the Maneka Gandhi vs Union of India (1978), where the Supreme Court expanded the scope of the right to life and personal liberty under Article 21. This case set the precedent for a series of judgments that interpreted Article 21 to include a wide array of rights, reflecting the judiciary’s proactive role.

Public Interest Litigation (PIL) has been a significant tool for promoting judicial activism in India. Introduced in the late 1970s, PILs have democratized access to justice, allowing any individual or organization to file a case on behalf of those who are unable to do so. This has led to several landmark judgments that have significantly impacted social justice and governance.

Critiques of Judicial Activism

While judicial activism has played a crucial role in upholding justice and rights, it has also faced criticism. Critics argue that the judiciary, by overstepping its constitutional mandate, infringes upon the domains of the legislative and executive branches, leading to a distortion of the balance of power. This raises concerns about judicial overreach and the potential for the judiciary to become an unchecked power center.

Conclusion: The Way Forward

Judicial activism in India has undeniably played a vital role in shaping the legal and social landscape. It has been instrumental in upholding constitutional values and promoting social justice. However, it is equally essential to maintain the delicate balance of power among the three branches of government. Striking this balance, while continuing to protect the rights of citizens, is the ongoing challenge and the way forward for judicial activism in India.

That’s it! I hope the essay helped you.

If you’re looking for more, here are essays on other interesting topics:

• Essay on Indian Sports
• Essay on Indian Soldiers
• Essay on Indian Poetry

Apart from these, you can look at all the essays by clicking here .

Happy studying!

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

Save my name, email, and website in this browser for the next time I comment.

Academia.edu no longer supports Internet Explorer.

To browse Academia.edu and the wider internet faster and more securely, please take a few seconds to  upgrade your browser .

Enter the email address you signed up with and we'll email you a reset link.

• We're Hiring!
• Help Center

Judicial Activism and the European Court of Justice

This essay will begin by defining Judicial Activism. It will then proceed, through an analysis of the benchmark Dassonville case, to illustrate an example of the European Court of Justice’s judicial activism. Upon doing so, the effectiveness of judicial activism will be evaluated by comparing its effects within the overall aims of the ECJ and the European Union as a whole. From then on, the democratic legitimacy the ECJ’s judicial activism will be questioned; against this, it will be argued that the function of judicial review is a safeguard that grounds the ECJ strictly to the rule of law, even if the process is inefficient and falls short of its intended ideal. Finally, a historical analysis of the development of the political institutions of the EU will show that the ECJ is by necessity an active court, and therefore judicial activism within the ECJ is better justified than in a national member state court.

Related Papers

sharan chandran

Introduction This paper researches the judicial activism applied by European courts. The Court of Justice of the European Union (CJEU) is the institution that comprises the whole judiciary in the European Union 1 (EU). As the judicial figurehead of the CJEU, the impact of the European Court of Justice 2 (ECJ) has gone far beyond the outcome of the particular cases it has resolved. Weiler, respected for his profound and seminal work in the Europanisation process, delineated the role of the ECJ in radically transforming the European legal and political order. 3 Weiler is not alone in his appraisal as the present author asserts that the ECJ must be construed as the most significant judicial body that transformed the institutional structure of the EU and facilitated the European integration project. Naturally, the impact brought by the ECJ prompted the preponderance of scholarships in the latter-end of the 20 th century to examine the issue of judicial activism. Some academics criticised the ECJ for judicial activism by stepping out of the boundaries of its jurisdiction to trigger the piecemeal transformation of Europe. 4 Others counter-argue this notion by contending that the judicial activism scholarship is weak because the ECJ's actions were within the scope of its jurisdiction. 5 This paper advances an alternate argument to both these theories. Firstly, it argues that judicial activism at the ECJ fostered the transformation of the EU institutional structure and integration process. However, the present author contends that it was legitimate for the ECJ to go beyond its jurisdictional limits and that the judicial activism was significant and indeed inevitable. The postulation that the application of judicial activism at the ECJ is legitimate will be corroborated by the theory that the ECJ should not be perceived simply as a court, rather it is an institutional actor that is able to engage in the process of lawmaking for the EU. This research paper would first define the term judicial activism and provide adequate apprehension on the jurisdiction of the ECJ. The practices of the ECJ in the transformation of the EU institutional structure and integrating Europe will subsequently be reviewed to vindicate the existence of judicial activism. The theoretical value of this research is to defend the ECJ against the principal criticisms it had received for judicial activism by contending that the nature of the ECJ's activism was legitimate, parallel to it being an institutional actor.

Journal of European Public Policy

Adam Luedtke

Joonas Vättö

This paper is in response to Hix and Høyland and their analysis of the overall theory and current quantitative understanding of the European Union’s judicial politics. In their work, the authors aimed to give a brief theoretical overview of judicial politics, courts, and constitutions, subsequently moving on to a focus on the European judicial system and the European Court of Justice in particular.

Olivier COSTA

From a legal point of view, European integration concerned the citizens at a very early stage. This explains why law specialists have always tended to deny the fact that there would be any democratic deficit in the EU. They underline the various legal ways the Court of Justice can be asked by any member state or private individual to pass a judgment over the legality of acts adopted by the EC, and even to challenge some of the decisions made by its institutions. However, such researchers do not propose much quantitative or qualitative analysis of individual direct litigation. The aim of this article is to go beyond legal reasoning and to assess the concrete possibilities for citizens to go to the Court. The analysis reveals a great asymmetry between the capacity of European citizens to resort to European law and shows that the impact of the ECJ on the democratization of the EU is, at least in that respect, marginal.

Panagiotis J. Dhima

The essay discusses the CJEU (former ECJ) 'judicial activism'.

The European Union legal order was created in the realm of International Law. Some time after, the European Court of Justice qualified it as a “new order of international law” (‘Van Gend & Loos’). Since then the epiphet ‘international’ has disappeared and the ‘new legal order’ has been modeled inspired by a ‘certain idea of Law’ - the State or national legal order. This paper describes briefly some of the pathways followed by the ECJ in its activist action of building a Law.

Cambridge University Press eBooks

Henri de Waele

richard kuper

Examining the major, if controversial, role of the European Court of Justice in the development of the European Union, this text argues that the Court is a highly political body - contrary to the legal formalism which sees the Court's decisions as the unfolding of pure legal principles. Kuper also argues that the Court has played and is still playing a significant part in the direction and very definition of the European Community. This then raises issues of democratic legitimacy, and the Court's work is evaluated with reference to issues concerning the distribution of powers and competences among the various bodies of the Community - the Court, Commission, Council, Parliament and Member States.

Fr Dehousse

The European Court of Justice has regularly been accused of activism. Recently, this debate has become more acute thanks to various evolutions (Brexit being only one of them). The charge of activism has no serious basis. However, many academic comments, national judgments and sometimes Advocate Generals’ conclusions reflect a decrease in the quality of the Court’s jurisprudence. This is sometimes confused with activism. It is important to study the causes of this reduced quality and examine the different reforms necessary to correct it. They should allow the European Court of Justice to focus better on its core function in the future.

Elżbieta Kużelewska

RELATED PAPERS

Microorganisms

Pamela Villegas

Young Scientist

Lesia Stoliarchuk

Robert Schipper

sadia mushtaq

Aerospace Medicine and Human Performance

Mitch Lomax

Blucher Engineering Proceedings

Tereza Kelly Gomes Carneiro

Abiodun Modupe

Region : Jurnal Pembangunan Wilayah dan Perencanaan Partisipatif

Aulia Basundhari Widyaningsih

Health Policy

Miguel Falcão

AIChE Journal

Navid Mostoufi

The American Journal of Tropical Medicine and Hygiene

Ruhu ve Bedeni Zehirleyen Kavram: Ressentiment

Songül Demir

Jui-Chun Hsieh

Journal of anxiety disorders

Per Carlbring

Zeitschrift für Psychodrama und Soziometrie

Christian Pajek

BOOK NOW :- ☎ 8527673949 | 💘 Call Girls In Mayapuri Delhi

Ashish Delhi

Indonesian Journal of Computer Science

Teuku Radillah

ghfkfg fdgdsf

The Journal of Clinical Endocrinology & Metabolism

Raymond Yao

Jurnal Inovasi Masyarakat

Daniel Surya Bakti Nababan

Universidad Nacional Federico Villarreal

Orlando José Gonzalez Clemente

Mahalaxmi Rathnanand

RELATED TOPICS

•   We're Hiring!
•   Help Center
• Find new research papers in:
• Health Sciences
• Earth Sciences
• Cognitive Science
• Mathematics
• Computer Science
• Academia ©2024

• Book Solutions
• State Boards

Essay on Judicial Activism for Class 10, 12 and Mains Exam

Essay on judicial activism for class 10, 12, mains exam (upsc, psc, ssc).

Judicial activism is a decision making policy wherein the judges use their personal views about the public policy among the existing legislation to mentor their decisions. It first originated in the United States in 1947. The judiciary plays an important role in upholding the dignity and promoting the rights of the citizens. Judicial activism implies the rulings of courts based on the judgement of the judges over any issue. It gives access to the disadvantaged groups who seek relief from the prudence. In India, the judiciary activism originated after the Emergency and hence Public Interest Litigation was used by the courts to reach out to public directly.

Judicial activism methods:

• Judicial review: It is a process by which the executive, administrative and legislative actions are subject to review by the judiciary.
• Public Interest Litigation- It aimed to secure public interest and justice of the socially disadvantaged groups.
• Constitutional review: It is the evaluation of the constitutionality of laws.
• Seeking help of international statue for ensuring the rights
• Original jurisdiction: Supervisory power of the higher courts on the lower courts.

Examples of judicial activism:

1.) Golaknath Case: The questions involved in this case was whether amendment is a law under article 13(2) and whether the fundamental rights can be amended or not. Supreme court asserted that fundamental rights are not amenable as stated in Article 13 and a new constituent assembly will be needed is order to make amends.

2.) Kesavananda Bharati case: It asserted that the whether parliamentary power to amend the constitution is perfect and unqualified. The decision laid down the basic doctrine principles of the Indian constitution. The case was heard by thirteen judges of the Supreme Court. The Supreme Court held that parliament does not have the authority to amend part 3 of the constitution having fundamental rights.

3.) In the Vishakha Case, the court laid down guidelines for protection of women’s rights against sexual harassment.

4.) Special Investigation Team on Black money: The UPA government was advised by the Supreme Court to set up SIT to investigate black money.

5.) The Supreme Court granted powers to the Arunachal Pradesh Governor by which the governor and President are unanswerable to the court for the exercise of their powers.

6.) In Olga Telis case, the Supreme Court asserted that the right to livelihood as well as the shelter also should be included in Article 231 of the Constitution.

Importance of judicial activism:

• It plays a fundamental role in upholding the rights of the citizens when the executive and the legislature cannot do so.
• To resolve matters that are transferred from the subordinate courts, appeals, etc.
• To apply legislation by interpret various statues
• The Public Interest Litigation made the judiciary approach much democratic.
• To help the constitution in interpreting any uncertainty in language of any provision.

Shortcomings of the judicial activism:

• It limits the functioning of the central and state governments in the process of surpassing its own power.
• The judicial opinion made by the judges become the standard opinion for all the other cases.
• The judgement can be influenced by the personal or the selfish motives of the judge which can affect the public.
• There can be a loss of faith in the judiciary due to the recurring review of the judgements.
• It results in the violation of the statutory and the legislative laws.

Conclusion:

Judicial activism is good so long it does not interfere with the government’s policy making power. It is beneficial for the disadvantaged sections of the society.The difficult task of the judiciary is to provide equal justice to allas people have high expectations from the it due to the changing socio-economic and political situations.

For more Essay like Judicial Activism, Students and Children can click this Essay link – Click here

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

Save my name, email, and website in this browser for the next time I comment.

We have a strong team of experienced Teachers who are here to solve all your exam preparation doubts

My view to make exams stress free essay in 400 words, amader poribesh class 4 solutions chapter 1 jib jogot, 700 word essay on a nation can develop only if all are educated, dav class 6 sst solution chapter 2 representation of the earth.

Sign in to your account

Username or Email Address

Remember Me