Part I recounts several important and heretofore unexplored moments in the history of the term "judicial activism. First Judicial Use of "Judicial Activism": Its purpose is to clarify the meaning of "judicial activism" when it is used in different contexts, so that those who use the term can communicate their ideas more effectively.
According to law professor Brian Z. Strauss has argued that judicial activism can be narrowly defined as one or more of three possible actions: Constitutional versus Statutory versus Common Law Precedents.
Ironically, as the term has become more commonplace, its meaning has become increasingly unclear. What did it mean initially? May Learn how and when to remove this template message Detractors of judicial activism charge that it usurps the power of the elected branches of government or appointed agencies, damaging the rule of law and democracy.
Early Usage of "Judicial Activism" Also, the judges that are appointed are usually appointed by previously elected executive officials so that their philosophy should reflect that of those who nominated them, that an independent judiciary is a great asset to civil society since special interests are unable to dictate their version of constitutional interpretation with threat of stopping political donations.
A third view is that so-called "objective" interpretation of the law does not exist. You may improve this articlediscuss the issue on the talk pageor create a new articleas appropriate.
But some scholars, [FN2] including at least one sitting Supreme Court Justice, [FN3] have suggested that in some contexts, it is not always a bad thing. Over half a century ago, a scholar wrote that he lived in "a day that hears much talk of judicial activism," [FN10] and thirty years ago, Judge Friendly wrote that he lived in the "days of judicial activism.
Which scholars and judges ushered it from obscurity to ubiquity? Arthur Schlesinger in Fortune Magazine Instead, it modestly assembles theories of judicial activism that have gained widespread acceptance, linking them to history, caselaw, and other scholarship.
Examples[ edit ] The examples and perspective in this article deal primarily with the United States and do not represent a worldwide view of the subject.
Definitions of Judicial Activism Etymology[ edit ] Arthur Schlesinger Jr. Most would agree that judicial activism is indeed slippery.
This is the problem: For example, Thomas Jefferson referred to the "despotic behaviour" of Federalist federal judges, in particular Chief Justice John Marshall.
Some proponents of a stronger judiciary argue that the judiciary helps provide checks and balances and should grant itself an expanded role to counterbalance the effects of transient majoritarianismi.
Early Scholarly Examination of Judicial Activism To achieve this end, this Comment begins by exploring the neglected history of the concept of judicial activism. Early History of the Term "Judicial Activism" This implies a tension between granting flexibility to enable the dispensing of justice and placing bounds on that flexibility to hold judges to ruling from legal grounds rather than extralegal ones.
Departures from Accepted Interpretive Methodology Thus, the problem continues unabated: Tamanaha, "Throughout the so-called formalist age, it turns out, many prominent judges and jurists acknowledged that there were gaps and uncertainties in the law and that judges must sometimes make choices.
Vertical versus Horizontal Precedent This Comment does not seek to attack or defend any particular notion of judicial activism, nor does it proffer an entirely new theory of the term.
Who was the first to use it?
During the s, the terms "judicial activism" [FN4] and "judicial activist" appeared in an astounding 3, journal and law review articles. This is so because "judicial activism" is defined in a number of disparate, even contradictory, ways; scholars and judges recognize this problem, yet persist in speaking about the concept without defining it.
In Search of the Earliest Use Kmiec Table of Contents I.Judicial Activism vs. Judicial Restraint Judicial activism and judicial restraint are two opposing philosophies when it comes to the Supreme Court justices' interpretations of the United States Constitution; justices appointed by the President to the Supreme Court serve for life,and thus whose decisions shape the lives of "We the people" for a.
Arthur Schlesinger Jr. introduced the term "judicial activism" in a January Fortune magazine article titled "The Supreme Court: ".
 The phrase has been controversial since its beginning. An article by Craig Green, "An Intellectual History of Judicial Activism," is critical of Schlesinger's use of the term; "Schlesinger's original introduction. 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 andthe court handed down some of the most famous legal decisions in U.S. history, including Brown v. The Selection of Supreme Court Justices and Federal Judges: Process & Tenure As opposed to the progressiveness of judicial activism, judicial restraint opines that the courts should uphold all.
Judicial Activism vs Judicial Restraint There are significant U.S. Supreme Court decisions that are believed to be examples of judicial activism. Judicial Activism: Definition, Cases, Pros.
Title Length Color Rating: Judicial Activism and Judicial Restraint - Judicial Activism is the Supreme Court’s willingness to use its powers to make significant changes in public policy or creatively [re]interpret the texts of the constitution.
Judicial Restraint is the Supreme Court’s willingness to limit the use and extent of its power avoid making significant .Download