Penn Undergraduate Law Journal
  • Home
  • About
    • Mission
    • Masthead
    • Faculty Advisory Board
    • Partner Journals
    • Sponsors
  • Submissions
  • Full Issues
  • The Roundtable
    • Pre-Law Corner
  • Events
  • Contact
    • Contact
    • Apply
    • FAQs
  • Home
  • About
    • Mission
    • Masthead
    • Faculty Advisory Board
    • Partner Journals
    • Sponsors
  • Submissions
  • Full Issues
  • The Roundtable
    • Pre-Law Corner
  • Events
  • Contact
    • Contact
    • Apply
    • FAQs

The Roundtable


Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.


INTERESTED IN wRITING FOR tHE rOUNDTABLE?

In Defense of Judicial Activism

11/24/2015

 
Picture
By Rachel Pomerantz

Rachel Pomerantz is a freshman at the University of Pennsylvania.

​
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.

​
[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

The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

Comments are closed.

    Categories

    All
    Akshita Tiwary
    Alana Bess
    Alana Mattei
    Albert Manfredi
    Alexander Saeedy
    Alexandra Aaron
    Alexandra Kanan
    Alice Giannini
    Alicia Augustin
    Alicia Kysar
    Ally Kalishman
    Ally Margolis
    Alya Abbassian
    Anika Prakash
    Anna Schwartz
    Ashley Kim
    Astha Pandey
    Audrey Pan
    Benjamin Ng'aru
    Brónach Rafferty
    Bryce Klehm
    Cary Holley
    Christina Gunzenhauser
    Christine Mitchell
    Christopher Brown
    Clarissa Alvarez
    Cole Borlee
    Connor Gallagher
    Dan Spinelli
    Dan Zhang
    David Katz
    Davis Berlind
    Derek Willie
    Dhilan Lavu
    Edgar Palomino
    Edna Simbi
    Emma Davies
    Esther Lee
    Evelyn Bond
    Filzah Belal
    Frank Geng
    Gabriel Maliha
    Georgia Ray
    Graham Reynolds
    Habib Olapade
    Hailie Goldsmith
    Haley Son
    Harshit Rai
    Henry Lininger
    Hetal Doshi
    Iris Zhang
    Irtaza Ali
    Isabela Baghdady
    Ishita Chakrabarty
    Jack Burgess
    Jessica "Lulu" Lipman
    Joe Anderson
    Jonathan Lahdo
    Jonathan Stahl
    Joseph Squillaro
    Justin Yang
    Kaitlyn Rentala
    Kanishka Bhukya
    Katie Kaufman
    Kelly Liang
    Keshav Sharma
    Ketaki Gujar
    Lauren Pak
    Lavi Ben Dor
    Libby Rozbruch
    Lindsey Li
    Luis Bravo
    Lyndsey Reeve
    Madeline Decker
    Maja Cvjetanovic
    Maliha Farrooz
    Marco DiLeonardo
    Margaret Lu
    Matthew Caulfield
    Michael Keshmiri
    Mina Nur Basmaci
    Muskan Mumtaz
    Natalie Peelish
    Natasha Darlington
    Natasha Kang
    Nayeon Kim
    Nicholas Parsons
    Nicholas Williams
    Nicole Greenstein
    Nihal Sahu
    Omar Khoury
    Owen Voutsinas Klose
    Owen Voutsinas-Klose
    Pheby Liu
    Rachel Bina
    Rachel Gu
    Rachel Pomerantz
    Rebecca Heilweil
    Regina Salmons
    Sajan Srivastava
    Sandeep Suresh
    Sanjay Dureseti
    Sarah Simon
    Saranya Das Sharma
    Saranya Sharma
    Sasha Bryski
    Saxon Bryant
    Sean Foley
    Sebastian Bates
    Serena Camici
    Shahana Banerjee
    Shannon Alvino
    Shiven Sharma
    Siddarth Sethi
    Sneha Parthasarathy
    Sneha Sharma
    Sophie Lovering
    Steven Jacobson
    Suaida Firoze
    Suprateek Neogi
    Takane Shoji
    Tanner Bowen
    Taryn MacKinney
    Thomas Cribbins
    Todd Costa
    Tyler Larkworthy
    Vatsal Patel
    Vikram Balasubramanian
    Vishwajeet Deshmukh
    Wajeeha Ahmad
    Yeonhwa Lee

    Archives

    January 2023
    December 2022
    November 2022
    September 2022
    June 2022
    March 2022
    February 2022
    January 2022
    December 2021
    November 2021
    May 2021
    April 2021
    March 2021
    February 2021
    January 2021
    December 2020
    November 2020
    October 2020
    July 2020
    June 2020
    May 2020
    April 2020
    March 2020
    February 2020
    December 2019
    November 2019
    October 2019
    September 2019
    August 2019
    July 2019
    May 2019
    April 2019
    March 2019
    January 2019
    December 2018
    November 2018
    October 2018
    September 2018
    August 2018
    July 2018
    June 2018
    May 2018
    April 2018
    March 2018
    February 2018
    December 2017
    November 2017
    October 2017
    August 2017
    July 2017
    May 2017
    April 2017
    March 2017
    February 2017
    January 2017
    December 2016
    November 2016
    October 2016
    September 2016
    August 2016
    July 2016
    June 2016
    April 2016
    March 2016
    February 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    June 2015
    May 2015
    April 2015
    March 2015
    February 2015
    November 2014
    October 2014
    August 2014
    July 2014
    June 2014
    May 2014
    April 2014
    March 2014
    December 2013
    November 2013
    October 2013
    September 2013

Picture
Picture
​