Judicial Activism

Definition

Judicial activism is the view that the Supreme Court and other judges can and should creatively (re)interpret the texts of the Constitution and the laws in order to serve the judges’ own visions regarding the needs of contemporary society.
The judges who hold this perspective are often seen as more willing to change precedent, making new interpretations or changing in the understanding of constitutional clauses.
They are generally less willing to defer to the elected branches of government, hence they are more likely to strike down laws as unconstitutional.

Judicial activism tends to be associated with a liberal interpretation of the Constitution, being more expansive in interpreting the rights and protections afforded under the Constitution.
This interpretive approach often promotes the protection of individual rights and liberties, championing issues like civil rights, privacy rights, and other social justice concerns.
Some examples that illustrate judicial activism include the Supreme Court decisions in Brown v. Board of Education and Roe v. Wade.

Critics argue that judicial activism is a form of overreach, stepping into a role that should be reserved for the legislative or executive branches of government.
They believe it usurps the democratic process, allowing unelected judges to make law based on their individual beliefs or preferences rather than the will of the people or their elected representatives.
This criticism is often raised by those favoring a strict constructionist view of the Constitution, who argue that the Constitution should be interpreted as its framers intended, strictly adhering to the text and original intent of the Constitution.

Supporters of judicial activism argue that it allows the courts to protect minority rights from majoritarian tyranny.
They believe that judicial activism is essential for moving society forward, especially in cases where the legislature is slow to act.
Judicial activism can help address societal issues that have evolved since the time the Constitution was written.

The ideological leanings of the Supreme Court justices greatly influence the extent of judicial activism seen in the Court’s decisions.
The appointment of these Justices can reflect the ideological stance of the President who appoints them, influencing the balance between activists and restraintists within the Court.
Recent years have seen debates over judicial activism versus judicial restraint come heavily into play during the confirmation process of Supreme Court nominees.