Eleanor Finch
Judicial activism is a highly debated topic, with critics arguing that judges exceed their duties and abandon their responsibility to interpret the Constitution, instead advancing their preferred policies. This view holds that judges should refrain from making policy decisions and political judgments, as these are beyond their purview. However, proponents of judicial activism emphasise its role in ensuring fairness, justice, and individual liberties, addressing contemporary issues directly and promoting equality. In the United States, judicial activism is often associated with pivotal Supreme Court decisions that have shaped the legal landscape, such as Brown v. Board of Education, which ruled against racial segregation in public schools, and Roe v. Wade, which interpreted a right to privacy as encompassing a woman's right to abortion. While judicial activism can lead to negative consequences like usurping legislative powers and creating unpredictable outcomes, it remains a crucial aspect of the judicial process, serving as a catalyst for legal reform and social progress.
| Characteristics | Values |
|---|---|
| Judicial activism is a philosophy of judicial decision-making | Judges allow their personal views on public policy to guide their decisions |
| Judicial activism is usually used to indicate that judges have gone beyond their proper roles | Judges abandon their responsibility to interpret the Constitution and decide cases to advance their preferred policies |
| Judicial activism is the assertion of the power of judicial review to set aside government acts | Judges enforce their own views of constitutional requirements |
| Judicial activism helps provide checks and balances | Judges grant themselves an expanded role to counterbalance the effects of transient majoritarianism |
| Judicial activism is most appropriate when it restrains the tendency of democratic majorities to act out of passion and prejudice | Judges help ensure fairness, justice, and individual liberties |
| Judicial activism can lead to negative consequences | Judges may usurp the powers of the legislative branch, undermine public trust in the judiciary, and create unpredictable outcomes |
| Judicial activism can lead to political polarization | Judges may interpret the same law differently depending on their ideologies |
| Judicial activism is viewed as a duty of the Constitution | Judges interpret the Constitution to expand or protect rights and maintain checks and balances |
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What You'll Learn
Judicial activism and the role of the judiciary
Judicial activism is a philosophy of judicial decision-making in which judges allow their personal views on public policy, among other factors, to guide their decisions. It is often used to describe judges who have gone beyond their traditional role of interpreting the Constitution and instead make decisions based on their own policy preferences. Academic usage defines activism as a judge's willingness to strike down the actions of another branch of government or overturn a judicial precedent, without any implied judgement on the correctness of the decision.
In the United States, judicial activism is often criticised for upsetting the balance between the three branches of government. Judges are unelected, so their decisions are less likely to be accepted by the public, and they may be ill-equipped to make sound public policy decisions. Critics argue that judges should refrain from making policy decisions or political judgments, as it is beyond their purview. However, proponents of judicial activism view it as a necessary check on legislative overreach and a way to protect human rights, promote social justice, and hold government institutions accountable. In certain cases, judicial activism has been instrumental in bringing about positive social changes and protecting the rights of marginalised communities, such as in the landmark Brown v. Board of Education case of 1954, which desegregated American schools.
In India, the judiciary has a long history of judicial activism, with judges having sweeping powers. For example, judges have required Delhi's auto-rickshaws to convert to natural gas to reduce pollution and closed much of the country's iron-ore mining industry to cut down on corruption. These rulings carry the force of Article 39A of the Constitution of India. The Indian Constitution does not distinguish between ratio decidendi and obiter dictum when establishing the legal validity of judicial pronouncements, which has enabled the Supreme Court to implement various judicial legislations through these observations.
While judicial activism can lead to positive social change, it can also have negative consequences such as usurping the powers of the legislative branch, undermining public trust in the judiciary, and creating unpredictable outcomes. It can also lead to political polarisation as different judges may interpret the same law differently based on their ideologies. Therefore, it is crucial to strike a balance between judicial activism and judicial restraint to ensure that the judiciary remains impartial, fair, and just.
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Judicial activism in the US
Judicial activism is a philosophy of judicial decision-making in which judges allow their personal views on public policy, among other factors, to guide their decisions. In the United States, judicial activism is often used to indicate that a judge has gone beyond their role in enforcing the Constitution and has decided a case based on their policy preferences. This can be viewed as a positive or negative phenomenon.
On the one hand, judicial activism can be seen as a check on legislative overreach and a way to protect human rights, promote social justice, and hold government institutions accountable. For example, in Brown v. Board of Education, the Supreme Court ruled that racial segregation of children in public schools was unconstitutional, which has become nearly universally hailed as a landmark decision for civil rights. Another example is the 2015 Obergefell v. Hodges case, which legalized same-sex marriage nationwide in the United States.
On the other hand, judicial activism can lead to negative consequences such as usurping the powers of the legislative branch, undermining public trust in the judiciary, and creating unpredictable outcomes. It can also lead to political polarization as different judges may interpret the same law in different ways depending on their ideologies. Critics argue that judges should refrain from making policy decisions or political judgments, as it is beyond their purview.
The debate over judicial activism is not a simple argument for or against, as both sides accuse the other of activism while denying that they engage in it themselves. The lack of agreed-upon definitions and examples further complicates the discussion. However, the persistent difference of opinion among scholars and judges regarding the interpretation of the Constitution makes it difficult to demonstrate that any decision in a controversial case is based on politics rather than law.
In recent years, the opposition to judicial activism has often come from right-leaning politicians and political commentators. For example, the appointment of Chief Justice John Roberts by the George W. Bush Administration continued the Court's rightward drift, which has seen the principles of judicial activism curtailed.
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Judicial activism in India
Judicial activism is a concept that originated in the US in 1947 and has been observed in India since the Emergency days. The term "judicial activism" is often used to describe a situation in which judges go beyond their traditional role of interpreting the Constitution and instead decide cases based on their own policy preferences. In India, the judiciary is seen as the protector of the Indian Constitution, and judicial activism has become a controversial topic.
India's judges have a long history of judicial activism that would be unimaginable in the United States. Indian judges have made rulings on a range of issues, including pollution, corruption, and the eligibility of politicians facing criminal charges to seek re-election. These rulings are made under the authority of Article 39A of the Constitution of India. The Indian judiciary has played an important role in upholding and promoting the rights of citizens, sometimes even overstepping into the territories of the executive.
The concept of Public Interest Litigation (PIL) is often associated with judicial activism in India. The shift from locus standi to PIL made the judicial process more democratic and participatory. Judicial activism is seen as a positive development by some, as it has helped liberalize access to justice and provide relief to disadvantaged groups. The introduction of PIL by Justice V. R. Krishna Iyer expanded the scope of judicial activism in India.
However, critics of judicial activism in India argue that the judiciary oversteps its bounds and usurps functions that should be performed by other branches of the government. There have been attempts to curb the power of the courts, including indirect methods such as supersession and transfer of judges. Defenders of judicial activism, such as former Chief Justice of India A. H. Ahmadi, counter that the judiciary is merely performing its legitimate function of protecting the public interest.
In conclusion, judicial activism in India has been a controversial topic, with some seeing it as a necessary check on the powers of the government and others criticizing it as an overreach of judicial authority. The Indian judiciary has played an active role in interpreting and enforcing the Constitution, sometimes invoking strong reactions from other branches of the government.
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Judicial activism and the interpretation of the Constitution
Judicial activism is a philosophy of judicial decision-making in which judges allow their personal views on public policy, among other factors, to guide their decisions. It is often criticised for going beyond the scope of a judge's duties and abandoning their responsibility to interpret the Constitution. Instead, it is argued, they decide cases to advance their preferred policies. In the United States, judicial activism is usually used to indicate that the speaker thinks judges have gone beyond their proper roles in enforcing the Constitution.
However, there is little agreement as to which decisions fit this description, and the term is generally considered unhelpful. It is often used as a rhetorical device to indicate disagreement with a decision. In academic usage, activism means only the willingness of a judge to strike down the action of another branch of government or to overturn a judicial precedent, with no implied judgement as to whether the decision is correct. In this sense, activism is simply the opposite of restraint. Both liberal and conservative judges may be activist in this sense, though conservative judges have been more likely to invalidate federal laws, and liberals more likely to strike down state laws.
In recent American history, opposition to judicial activism has often been voiced by those on the right of the political spectrum. However, judicial activism is not always seen as a negative. Proponents of judicial activism view it as a necessary check on legislative overreach, and it has been instrumental in bringing about positive social change and protecting the rights of marginalised communities. For example, the landmark Brown v. Board of Education case of 1954, which desegregated American schools, has been nearly universally hailed as a landmark decision for civil rights. Other cases, such as Roe v. Wade, have been both hailed and derided as judicial activism, depending on the political leanings of the commentator.
Judicial activism can also be seen in the Indian Constitution, which grants the judiciary the power to review the actions and decisions of the State. India's judges have sweeping powers and a long history of judicial activism that would be unimaginable in the United States. For example, judges have required Delhi's auto-rickshaws to convert to natural gas to cut down on pollution, and closed much of the country's iron-ore-mining industry to reduce corruption.
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Judicial activism and the risk of upsetting the balance of power
Judicial activism is a philosophy of judicial decision-making in which judges allow their personal views on public policy to guide their decisions. It is often criticised for going beyond the scope of a judge's duties and abandoning their responsibility to interpret the Constitution. Instead, judges are seen as advancing their preferred policies, which risks upsetting the balance between the three branches of government.
In the United States, judicial activism is usually associated with the belief that judges have overstepped their role in enforcing the Constitution. Critics argue that judges should refrain from making policy decisions or political judgments, as it is beyond their purview. Judicial activism can lead to negative consequences such as usurping the powers of the legislative branch, undermining public trust in the judiciary, and creating unpredictable outcomes. It can also lead to political polarisation, as different judges may interpret the same law differently based on their ideologies.
However, judicial activism is not always seen as negative. Proponents of judicial activism view it as a necessary check on legislative overreach and a way to protect human rights, promote social justice, and hold government institutions accountable. In certain cases, it has been instrumental in bringing about positive social changes and protecting the rights of marginalised communities. For example, the landmark Brown v. Board of Education case in 1954, which desegregated American schools and paved the way for equal educational opportunities, is considered a positive instance of judicial activism.
The modern trend of judicial activism began in 1973 when the Allahabad High Court rejected the candidature of Indira Gandhi in State of Uttar Pradesh v. Raj Narain. India's judges have sweeping powers and a long history of judicial activism that would be unimaginable in the United States. For instance, India's Supreme Court ordered the constitution of a ten-member National Task Force of doctors to give recommendations on ensuring safety at the workplace following a rape and murder incident.
In summary, judicial activism is a complex issue that has been debated and scrutinised for decades. While it can lead to positive social change, it also risks upsetting the balance of power between the branches of government and creating negative consequences. It is crucial to strike a balance between judicial activism and judicial restraint to ensure that the judiciary remains impartial, fair, and just.
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Frequently asked questions
Judicial activism is when a justice abandons their responsibility to interpret the Constitution and instead decides cases to advance their preferred policies.
In constitutional interpretation, two main approaches emerge: originalism and judicial activism. Originalism aims to adhere to the intentions of the Constitution's framers. Judicial activism, on the other hand, considers contemporary society and evolving norms to address legal questions.
Critics of judicial activism argue that judges go beyond the scope of their duties and make policy decisions or political judgments, which is beyond their purview. It can also lead to negative consequences such as undermining public trust in the judiciary and creating unpredictable outcomes.
Proponents of judicial activism emphasise that it is a necessary tool to ensure fairness, justice, and individual liberties. Judicial activism has been instrumental in bringing about positive social changes and protecting the rights of marginalised communities. It can address pressing societal concerns not explicitly outlined in the constitutional text, promoting equality and social justice.
Some examples of judicial activism in the United States include the Brown v. Board of Education case in 1954, which ruled that racial segregation in public schools was unconstitutional, and the 2015 Obergefell v. Hodges case, which legalised same-sex marriage nationwide.
