Kmiec Table of Contents I. Early History of the Term "Judicial Activism" In Search of the Earliest Use
Judicial activism Save Judicial activism refers to judicial rulings that are suspected of being based on personal opinion, rather than on existing law.
It is sometimes used as an antonym of judicial restraint. The question of judicial activism is closely related to constitutional interpretationstatutory constructionand separation of powers.
Etymology Arthur Schlesinger Jr. An article by Craig Green, "An Intellectual History of Judicial Activism," is critical of Schlesinger's use of the term; "Schlesinger's original introduction of judicial activism was doubly blurred: For example, Thomas Jefferson referred to the "despotic behaviour" of Federalist federal judges, in particular Chief Justice John Marshall.
Strauss has argued that judicial activism can be narrowly defined as one or more of three possible actions: Others have been less confident of the term's meaning, finding it instead to be little more than a rhetorical shorthand. Kermit Roosevelt III has argued that "in practice 'activist' turns out to be little more than a rhetorically charged shorthand for decisions the speaker disagrees with"; likewise, the solicitor general under George W.
BushTheodore Olsonsaid in an interview on Fox News Sundayin regards to a case for same-sex marriage he had successfully litigatedthat "most people use the term 'judicial activism' to explain decisions that they don't like.
A third view is that so-called "objective" interpretation of the law does not exist. According to law professor Brian Z. Tamanaha, "Throughout the so-called formalist age, it turns out, many prominent judges and jurists acknowledged that there were gaps and uncertainties in the law and that judges must sometimes make choices.
This implies a tension between granting flexibility to enable the dispensing of justice and placing bounds on that flexibility to hold judges to ruling from legal grounds rather than extralegal ones. Some proponents of a stronger judiciary argue that the judiciary helps provide checks and balances and should grant itself an expanded role to counterbalance the effects of transient majoritarianismi.
Also, the judges that are appointed are usually appointed by previously elected executive officials so that their philosophy should reflect that of those who nominated them, that an independent judiciary is a great asset to civil society since special interests are unable to dictate their version of constitutional interpretation with threat of stopping political donations.The Selection of Supreme Court Justices and Federal Judges: Process & Tenure As opposed to the progressiveness of judicial activism, judicial restraint opines that the courts should uphold all.
Judicial activism refers to judicial rulings that are suspected of being based on personal opinion, rather than on existing law. It is sometimes used as an antonym of judicial restraint.
The definition of judicial activism and the specific decisions that are activist are controversial political issues. JUDICIAL ACTIVISM & GROWTH OF ENVIRONMENTAL JURISPRUDENCE I. INTRODUCTION Judiciary in India particularly, Supreme Court and high courts have played an important role in preserving the environment without halting the development of the country which means preservation of doctrine of sustainable development.
The Supreme Court of India (Hindi: भारत का सर्वोच्च न्यायालय) is the highest judicial forum and final court of appeal of India established under Constitution of India, as per which Supreme Court is the highest constitutional court and acts as the guardian of Constitution.
The Warren Court was the first Supreme Court bench to be called a “judicial activist” for its decisions. While Chief Justice Earl Warren presided over the court between and , the court handed down some of the most famous legal decisions in U.S. history, including Brown v.
The question of judicial activism is closely related to constitutional interpretation, statutory construction, and separation of r-bridal.comogyArthur Schlesinger Jr. introduced the term "judicial activism" in a January Fortune magazine article titled "The Supreme Court: ".The phrase has been controversial since its beginning.