”Legislation from the bench.”

Judicial activism is the use of one’s own agenda, whether political or morale, in the decision process of the courts. It dates back to more than 100 years ago to Chief Justice John G. Roberts. It is more often the case that conservatives use this phrase against liberals, but “On the bench, 'activism' and 'restraint' don’t track with 'liberal' and 'conservative.'” (Emily Bazelon, The Washington Post 2006)

“Conservatives like to divide judges into liberal “activists” and conservative nonactivists who interpret the law rather than making it. Anyone who follows the courts knows that conservative judges are as activists as liberal judges –just for different causes. A new study of Supreme Court voting patterns confirms this and suggest that the conservative justices Antonin Scalia and Clarence Thomas are actually more activist than their liberal colleagues.” (New York Times 2006)

    There are three important things to first understand about judicial activism:
  1. Judicial activism is a vague concept.
  2. Judicial activism is being challenged.
  3. People who use the term have the opposite views than those they use the term against.
    • Conservatives hurl “judicial activism” as an epithet against liberal judges.

Some say that courts are interfering too much in the political process. It is true that the purpose of the Supreme Court and judges is “to be a modest one of applying the laws that duly elected politicians enact. It is most definitely not part of the judges’ responsibilities to impose their own values and ideas on the country.” (Allan Hutchinson) The particular thing to notice here is that judges that do in fact use their own values and ideas are judicial activists.

Critics of judicial activism tend to be from the Reform party and they desire judicial restraint because they think courts are too progressive. This argument is basically the assertion that if judges reserve their own agendas they will only act in regards to constitutional purpose. This prevents the trespassing onto illegitimate ideological terrain.

A related and important concept is adjudication. “Adjudication is choice, plain and simple. When it is accepted that there is no one right or exclusive way to apply the Constitution, the charge of being political and activist loses much of is force. The only thing left to debate is whether a particular ruling is better or worse, not correct or incorrect, in its informing political ideals and commitments.” (Allan Hutchinson) Judges have the ability of adjudication, it is their power to act.

    Topics that may lead to judicial activism:
  • Gay rights
    • Leads to giving other groups rights.
  • Aboriginal land claims
  • Abortion
  • Validating illegal searches that violate the “knock-and-search” rule and the use of illegally collected evidence in court.
  • The creation of laws via the court
    • The Rehnquist court “created a new judicial concept found nowhere in the Constitution which holds that Congress can pass laws on the 14th Amendment equal-protection grounds only if those laws are “proportional to the harm” that Congress is attempting to address.” (Hugh A. Wilson, Newsday 2006)
    • The Dred Scott decision was a Supreme Court case of judicial actiism.
    Note: There are topics on both sides of activist for both conservatives and liberals.

Replacing judicial activism:
In recent years politicians have called for the abandoning of the phrase on the basis that the Supreme Court is the servant of the American people. The problem would then be how to register disapproval or approval of judicial decisions (and without reference to liberalism or conservatism). But there is a solution here, “We can decide whether the Supreme Court is behaving appropriately – whether a particular decision is legitimate – by deciding whether it is employing an appropriate level of deference to the judgment of other governmental institutions.” (Los Angeles Times Kermit Roosevelt)

The opposite of judicial activism would be judicial restraint and the upholding of liberty. How do you judge the between judicial activism and judicial restraint? What about the difference of values? You pretty much can’t. “There is no way to interpret the charter or any other constitutional provision without resorting to contested political values.” (Allan Hutchinson)


“Activism is not necessarily a bad thing. The Supreme Court is supposed to strike down laws that are unconstitutional or otherwise flawed. Clearly all nine justices, from across the political spectrum, believe this, since they all regularly vote to strike down laws.” (New York Times 2006)

“There is no technical or purely legal way to decide what those values are – law is politics by other means.” (Allan Hutchinson)

Judges cannot avoid making political choices.