In Defense of Judicial Activism

By Rachel Pomerantz

Rachel Pomerantz is a freshman at the University of Pennsylvania.
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Politicians slap the label of “judicial activism” on any court case that does not agree with their ideologies. Both recently and historically, conservatives have been quite vocal in criticizing the court for making decisions based on personal opinion over the law. Liberal rulings on issues ranging from abortion to criminal justice are swiftly followed by calls to curtail judges run amok who are legislating from the bench. [1] After the Supreme Court legalized gay marriage nationally this past summer, instead of debating the virtues of the decision, those on the political right decried the political motivations of the “five unelected justices.” [2] Republican presidential candidate Senator Ted Cruz called for judicial retention elections as a “means for throwing off judicial tyrants.” [3] Chief Justice John Roberts, a conservative appointed to the court by President George W. Bush, stated that the court’s decision was based in the morals of the majority justices and not the Constitution. [4]

While it may be tempting to point to conservatives as the sole perpetrators of this political accusation, the pendulum swings both ways. After the Supreme Court virtually made the final decision that a Republican would occupy the White House in Bush v. Gore (2000), liberals began to find their own language to argue for judicial restraint. More recently, in 2012, while still reeling from their loss in the Citizens United v. Federal Election Commission (2010) and facing the possibility of the court castrating the Affordable Care Act, liberal voices proposed the following reforms: packing the court (harkening back to FDR’s battle with the third branch of federal government), setting term limits, and requiring a “6-3 supermajority for overturning an act of Congress.” [5]

But what exactly is judicial activism? Originating from a 1947 Forbes article, the term judicial activism does not have one definitive meaning, and political figures take advantage of this ambiguity to craft the definition to their political benefit. Black’s Law Dictionary, a widely respected legal resource, states that judicial activism is “a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent.” [6]

As Marbury v. Madison established in 1803, judges must and can interpret the law. From time to time, there are gaps in how to apply the law to the case at hand. These gaps appear not only when a law is evaluated in the light of a ground-breaking case, but also when the circumstances surrounding the application of the law are different from the precedent. [7] This is precisely where a judge’s experiences and expert knowledge play a role in judicial decisions.

Perhaps one of the greatest mysteries is that in using judicial activism as a slur to denigrate opposing judges, we accept the implicit notion that being an activist in the judicial context is wrong. Why is it that we revere activism in all forms of American civil society except when it is legal experts contemplating the law? We hold extensive Senate confirmation hearings to determine if candidates are qualified to be on the Supreme Court, and Supreme Court justices build up impressive resumes full of informative cases, interactions with witnesses, and exposure to evidence, which is why they are deemed qualified to sit on the highest court in the land. Why should they be forced to divorce their legal opinions from the experience that got them there?

The liberal Warren Court gave us storied cases such as Brown v. Board of Education, Mapp v. Ohio, and Miranda v. Arizona. Chief Justice Warren, who ran on the Republican presidential ticket in 1948, led the court using his experience formed as a prosecutor to engineer the case law that now constitutes a substantial portion of the basic rights of American citizens. [8] Judicial activism ended “separate but equal,” expanded the rights of the accused, and defended religious liberty.

Judges should strive to be judicial activists not simply to enter the history textbooks but because they are in a position to use their experience to interpret and apply the law in a way that renders a more perfect union. Judicial activism should not be a slander to hurl at our country’s brightest legal minds. It is, in fact, a badge of honor.

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[1] Douthat, Ross. "The Liberal Embrace of Judicial Restraint." New York Times. June 26, 2012. Accessed November 9, 2015. http://campaignstops.blogs.nytimes.com/2012/06/26/the-liberal-embrace-of-judicial-restraint/?_r=1.
[2] Anderson, Ryan. "Supreme Court’s Marriage Equality Decision Is Unadulterated Judicial Activism - The Boston Globe." BostonGlobe.com. June 26, 2015. Accessed November 9, 2015. https://www.bostonglobe.com/opinion/2015/06/26/supreme-court-marriage-equality-decision-unadulterated-judicial-activism/S3w8eDx94vIJ01Yd7JijUI/story.html.
[3] Dunn, Catherine. "After Same-Sex Marriage Ruling, Ted Cruz Proposes Elections For Supreme Court Justices." International Business Times. June 27, 2015. Accessed November 9, 2015. http://www.ibtimes.com/after-same-sex-marriage-ruling-ted-cruz-proposes-elections-supreme-court-justices-1986645.
[4] Anderson, Ryan. "Supreme Court’s Marriage Equality Decision Is Unadulterated Judicial Activism - The Boston Globe." BostonGlobe.com. June 26, 2015. Accessed November 9, 2015. https://www.bostonglobe.com/opinion/2015/06/26/supreme-court-marriage-equality-decision-unadulterated-judicial-activism/S3w8eDx94vIJ01Yd7JijUI/story.html.
[5] Douthat, Ross. "The Liberal Embrace of Judicial Restraint." New York Times. June 26, 2012. Accessed November 9, 2015. http://campaignstops.blogs.nytimes.com/2012/06/26/the-liberal-embrace-of-judicial-restraint/?_r=1.
[6] Franek, Mark. "Judicial Activism: A Tempest, or a Tempest in a Teapot?"The Philadelphia Lawyer Summer 2014 (2014): 40-42.
[7] Ibid.
[8] Fox, John. “Earl Warren.” PBS. December 1, 2006. Accessed November 8, 2015. http://www.pbs.org/wnet/supremecourt/democracy/robes_warren.html

Photo Credit: Flickr User Michael Galkovsky

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