Can someone define "judicial activism?"

 

Anyone?

Why don't you give it a shot?

Why don't you give it a shot?

 

I have no clue. I've heard it bantered about so I thought I'd ask.

 

My guess is that most people consider it to be a decision that goes against their beliefs but I am looking for a real definition.

 

One definition I saw is judges who strike down statutes passed by Congress. Do you think there is one side (liberal v conservatives) that engage in this practice more than the other?

OK. I'll bite.

 

First, I'll give two examples of what an activist judge is not.

 

A judge is not an activist judge because you disagree with his decision. However, peoples emotions often times cloud their judgment such that this is the most often reason judges are cited as being "activist".

 

Second, a judge is not an activist judge just because he strikes down a law. Often times people who favor judicial activism will cite this as a criteria since statistically non-activist judges strike down a law almost as often as an activist judge. When a non-activist judge strikes down a law it typically is restoring the status quo prior to a legislature enacting a law that encroached on individual rights. He is not writing new law so much as he is protecting existing law.

 

Now for the definition of an activist judge. An activist judge is a judge who ignores long established laws, and long established precedents to render a decision that effectively replaces the existing law. The judge absconds with what is and should remain the prerogative of the legislature. The "new law" written by the judge represents what the judge feels what the law should be rather than what the law as written actually is or what precedent has long established. Often times you can spot an activist decision by the logic used to justify the decision. Because the activist decision does not have a sound basis in the law, mental gymnastics are necessary. The result is novel interpretations to familiar law or references to obscure passages which previous carried little weight.

 

Good examples of activist decisions can be found in the recent supreme court decisions at the state level concerning gay marriage. Existing law and precedent which has existed for centuries defined marriage between two people of the opposite sex. All the laws previous passed understood the marriage laws that way. The courts referred to general passages in the law that had never previously been interpreted to include the right that they divined to be included. Often times the state legislature or the the people had voted against establishing those rights conjured up by the courts.

 

 

P.S. The only legitimate way for gay marriage to be legalized is either through a vote of state legislature or a state-wide referendum.

OK. I'll bite.

 

First, I'll give two examples of what an activist judge is not.

 

A judge is not an activist judge because you disagree with his decision. However, peoples emotions often times cloud their judgment such that this is the most often reason judges are cited as being "activist".

 

Second, a judge is not an activist judge just because he strikes down a law. Often times people who favor judicial activism will cite this as a criteria since statistically non-activist judges strike down a law almost as often as an activist judge. When a non-activist judge strikes down a law it typically is restoring the status quo prior to a legislature enacting a law that encroached on individual rights. He is not writing new law so much as he is protecting existing law.

 

Now for the definition of an activist judge. An activist judge is a judge who ignores long established laws, and long established precedents to render a decision that effectively replaces the existing law. The judge absconds with what is and should remain the prerogative of the legislature. The "new law" written by the judge represents what the judge feels what the law should be rather than what the law as written actually is or what precedent has long established. Often times you can spot an activist decision by the logic used to justify the decision. Because the activist decision does not have a sound basis in the law, mental gymnastics are necessary. The result is novel interpretations to familiar law or references to obscure passages which previous carried little weight.

 

Good examples of activist decisions can be found in the recent supreme court decisions at the state level concerning gay marriage. Existing law and precedent which has existed for centuries defined marriage between two people of the opposite sex. All the laws previous passed understood the marriage laws that way. The courts referred to general passages in the law that had never previously been interpreted to include the right that they perceived to be covered. Often times the state legislature or the the people had voted against establishing those rights conjured up by the courts.

 

 

P.S. The only legitimate way for gay marriage to be legalized is either through a vote of state legislature or a state-wide referendum.

 

Would, then, the judges of the supreme courts that ruled on civil rights, Brown vs. the BOE, be activist judges because they struck down long-standing precedents? And if so, wouldn't that seem to prove that there are instances where judicial activism is the RIGHT approach?

I should also add that it is possible for a judge to "write new law" without being an "activist" judge. There are times when a situation is not covered by the law and never before encountered is before the court. (Although these are typically rare occurrences.) At that point in time the judge has to make a decision and regardless of how he eventually rules, he/she would be "writing new law".

Would, then, the judges of the supreme courts that ruled on civil rights, Brown vs. the BOE, be activist judges because they struck down long-standing precedents? And if so, wouldn't that seem to prove that there are instances where judicial activism is the RIGHT approach?

 

9-0 judicial decision may not be considered activism but it would lend support to your question. I think people are more talking about renegage individuals, not unanimous decisions, when they talk of activist judges.

OK. I'll bite.

 

First, I'll give two examples of what an activist judge is not.

 

A judge is not an activist judge because you disagree with his decision. However, peoples emotions often times cloud their judgment such that this is the most often reason judges are cited as being "activist".

 

Second, a judge is not an activist judge just because he strikes down a law. Often times people who favor judicial activism will cite this as a criteria since statistically non-activist judges strike down a law almost as often as an activist judge. When a non-activist judge strikes down a law it typically is restoring the status quo prior to a legislature enacting a law that encroached on individual rights. He is not writing new law so much as he is protecting existing law.

 

Now for the definition of an activist judge. An activist judge is a judge who ignores long established laws, and long established precedents to render a decision that effectively replaces the existing law. The judge absconds with what is and should remain the prerogative of the legislature. The "new law" written by the judge represents what the judge feels what the law should be rather than what the law as written actually is or what precedent has long established. Often times you can spot an activist decision by the logic used to justify the decision. Because the activist decision does not have a sound basis in the law, mental gymnastics are necessary. The result is novel interpretations to familiar law or references to obscure passages which previous carried little weight.

 

Good examples of activist decisions can be found in the recent supreme court decisions at the state level concerning gay marriage. Existing law and precedent which has existed for centuries defined marriage between two people of the opposite sex. All the laws previous passed understood the marriage laws that way. The courts referred to general passages in the law that had never previously been interpreted to include the right that they divined to be included. Often times the state legislature or the the people had voted against establishing those rights conjured up by the courts.

 

 

P.S. The only legitimate way for gay marriage to be legalized is either through a vote of state legislature or a state-wide referendum.

 

Thanks, brother.

 

Do you think there are activists on the current SC?

I have no clue. I've heard it bantered about so I thought I'd ask.

 

My guess is that most people consider it to be a decision that goes against their beliefs but I am looking for a real definition.

 

One definition I saw is judges who strike down statutes passed by Congress. Do you think there is one side (liberal v conservatives) that engage in this practice more than the other?

 

 

So if you have no clue as to what is judicial activism, it would be impossible for you to disagree with anyone's definition of judicial activism, correct?

I think the attached link gives a pretty good explanation of what is generally considered by conservatives to be judicial activism:

 

http://www.wisegeek.com/what-is-judicial-activism.htm

 

Me being a big State rights person, I love the explanation.!

So if you have no clue as to what is judicial activism, it would be impossible for you to disagree with anyone's definition of judicial activism, correct?

 

I can certainly question the validity of the logic stated. Shooter's explanation seems logical to me so I have no argument with his interp. While I try to stay on top of many things, judges decisions and their reasoning is not one that I'm well versed on.

 

The purpose of the original question was simple. Every time we talk about judges someone mentions "legislating from the bench" or "judicial activism" yet I don't think most people can put together a logical definition of what that really means. As I stated, its my opinion that many yell those terms when they don't like a decision.

 

So, in the interest of germane discussion, I threw out the question.

Would, then, the judges of the supreme courts that ruled on civil rights, Brown vs. the BOE, be activist judges because they struck down long-standing precedents? And if so, wouldn't that seem to prove that there are instances where judicial activism is the RIGHT approach?

 

I believe that decision comes very close to judicial activism but just falls just short. However, Brown v BOE is a good example of the rare occasion in which precedent should not be followed. The Court, like any other group of people, is not immune from making mistakes. If going against precedent were prohibited in all cases, then the Court would never be able to correct a mistake, even after the mistake has become obvious. (The 9-0 decision lends credence that the mistake was obvious.) Those instances of going against precedent should be very very very rare.

 

Where I believe the Brown v. BOE fall short of activism has to do with the logic used in the decision. They didn't have to resort to convoluted logic to justify their decision. The justices simply had to expose the flawed logic of the previous decision. In Plessey v Furgeson, the Court said that separate was equal. An objective comparison of facilities easily exposed separate but equal as an obvious falsehood. If the facilities for blacks and whites had truly been equal even though they were separate then I think you have your case for activisim since the Plessey logic would not have been refuted.

 

I am willing to concede that there may be rare instances where both long established law and long established precedent are both wrong. Neither the law nor judicial decsions are without faults. So in that case it would seem that the RIGHT decision would be to go against both even though there might be no basis for the RIGHT decision other than the judges viewpoint. However, I believe that the harm in accepting going against the law and precedent as comonplace far exceeds any benefit that would be gained. The harm would exceed any benefit because I believe the judge's decision would ultimately prove to be incorrect much more often than the law and precedent. Also, the more radical a judge is (from either the left or the right) the more likely the judge would view the current law and precedent as being incorrect. Therefore, by accepting judicial activism you are empowering the most radical elements of the judiciary. Judicial activism weakens the law by allowing a judge to substitute his/her judgement for the law. We no longer become a nation governed by laws, we become a nation governed by judges. IMHO such a system empowers tyranny and reduces security.

I think the attached link gives a pretty good explanation of what is generally considered by conservatives to be judicial activism:

 

http://www.wisegeek.com/what-is-judicial-activism.htm

 

Me being a big State rights person, I love the explanation.!

 

In trying to apply the definition from the site you list, I wonder if Civil Rights Legislation would be an Activist position.

 

The clear interpretation of the Constitution made by previous courts (Dred Scott comes to mind and the rules that indicated how population was to be counted for districting) held that something such as "seperated but equal" could apply. It was legislated by local governing bodies and yet the Supreme Court goes in a completely different direction in the last half of the 20th century.

 

Is that Activism by the definition of the website or am I misreading it?

In trying to apply the definition from the site you list, I wonder if Civil Rights Legislation would be an Activist position.

 

The clear interpretation of the Constitution made by previous courts (Dred Scott comes to mind and the rules that indicated how population was to be counted for districting) held that something such as "seperated but equal" could apply. It was legislated by local governing bodies and yet the Supreme Court goes in a completely different direction in the last half of the 20th century.

 

Is that Activism by the definition of the website or am I misreading it?

 

I think your question illustrates the issue. My guess is that in 1954 many thought of the Brown v Board decision as "legislating from the bench" or "activisim." As time passed, it became more obvious that it wasn't.

 

So, maybe some of today's rulings that are assailed will someday be more accepted.

Honestly, based on what has been posted, I feel that the term "judicial activism" comes down to an individual's interpretation of a ruling and what that person feels about the result. I don't think I can agree that there is a legitimate "judicial activism" label. If I were racist, I could cry "judicial activism" regarding any number of precedents and laws that were overturned to ensure civil rights, for instance. If I were an gender-biased person, the inclusion of females could inspire the cry of judicial activsm.

 

I think it's a subjective, rather than objective, term, and therefore there aren't any concretely measurable criteria which can be applied in order to definitevely label a judge as a "judicial activist".