Written by admin
Thursday, November 25th, 2010
Judicial Activism and Judicial Restraint
Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial political issue, particularly in the United States. The question of judicial activism is closely related to constitutional interpretation, statutory construction, and separation of powers.
Arthur Schlesinger Jr. introduced the term “judicial activism” in a January 1947 Fortune magazine article titled “The Supreme Court: 1947.”
“Schlesinger’s article profiled all nine Supreme Court justices on the Court at that time and explained the alliances and divisions among them. The article characterized Justices Black, Douglas, Murphy, and Rutledge as the “Judicial Activists” and Justices Frankfurter, Jackson, and Burton as the “Champions of Self Restraint.” Justice Reed and Chief Justice Vinson comprised a middle group. Keenan D. Kmiec
Black’s Law Dictionary defines judicial activism as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”Judicial restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional. It is sometimes regarded as the opposite of judicial activism.
In deciding questions of constitutional law, judicially-restrained jurists go to great lengths to defer to the legislature. Judicial restraint requires the judge to uphold a law whenever possible. Former Associate Justice Felix Frankfurter, a Democrat appointed by Franklin Roosevelt, is generally seen as the “model of judicial restraint”.
True judicial activism occurs when a court exercises jurisdiction in a case without proper constitutional or statutory authority.
