Judicial activism

Judicial activism refers to the judicial philosophy that is sometimes referred to as "legislating from the bench".

Judicial activists believe that it is acceptable to rule on lawsuits in a way that leads to a preferred or desired outcome, regardless of the law as it is written. Judicial restraint is generally thought of as the opposite of judicial activism.

Matthew Schneider, a professor of law at Thomas M. Cooley Law School, defines judicial activism as, "the theory under which judges may 'actively' interpret the law on a broad plane and are not necessarily constrained to relying on the sources and issues strictly before them."

History

The term "judicial activism" was coined in a 1947 Fortune article by Arthur M. Schlesinger Jr., but seems to have been around as a general concept before that. In the 2008 article An Intellectual History of Judicial Activism, Roger Craig Green argues that the term was never adequately defined—not by Schlesinger or any scholar since. He says that Schlesinger’s article did not explain what counts as activism, nor did it say whether it was a good or bad thing.

An article by Keenan Kmiec says that in its early usage, it was sometimes used with a positive connotation akin to "civil rights activist". Despite this, the term is typically used as a criticism, even in its beginning. Louis Pollak, now a judge of the U.S. District Court for the Eastern District of Pennsylvania, said in 1956, "It seems safe to say that most judges regard 'judicial activism' as an alien 'ism' to which their misguided brethren sometimes fall prey."

Edward McWhinney, a law professor at the University of Toronto, was one of the first scholars to focus on the term. He wrote two papers about the concept in the 1950s called "The Supreme Court and the Dilemma of Judicial Policy-Making" and "The Great Debate: Activism and Self-Restraint and Current Dilemmas in Judicial Policy-Making". McWhinney recognized the difficulties in applying the term broadly. He said, "A judicial attitude, such as Black's favoring the restriction of state action interfering with speech-press liberties, may be activist qua speech but passivist qua the protections of states-rights and local self-determination in a federal system." According to Keenan Kmiec, McWhinney "laid the groundwork for future scholars, and stands as a valuable, if unrecognized, early contribution to this difficult topic."

See also

• Philosophy of law
• Judicial philosophy
• Judicial restraint