What Is Judicial Activism?

As we study the concept of judicial review and the great power the Supreme Court of the United States has decreed for itself, the question of "judicial activism" arises. What is judicial activism? Is it nothing more than a label used by legal commentators to describe decisions they disagree with? Or is it a real threat to democratic self-government and the rule of law? Consider the following dialogue by Roger Clegg on this issue. What are your thoughts?

Link Here is a major excerpt:

Roger Clegg: A Brief Dialogue on Judicial Activism

Central to the judicial nominations debate is the question of judicial activism. Through a series of questions and answers written for the Committee for Justice, Roger Clegg explains what types of decisions constitute judicial activism and why Americans from across the political spectrum should oppose it. Clegg is president of the Center for Equal Opportunity, a former high-ranking Justice Department official, and one of the nation's leading experts on civil rights law.

A BRIEF DIALOGUE ON JUDICIAL ACTIVISM
By Roger Clegg

Q. What is judicial activism?

A. Judicial activism is when a judge ignores what the text of the Constitution or some other law says and substitutes instead his own preference for what it ought to say. It can involve putting something into the text that isn't there, or taking out something that is there.

Q. Is it activism whenever a court strikes down a statute as unconstitutional?

A. Of course not. If a statute violates the Constitution, it would be judicial activism not to strike it down. Striking down a statute is judicial activism only if the statute really isn't inconsistent with the Constitution.

Q. Is it activism whenever a court overrules one of its own precedents?

A. Again, of course not. The principle of stare decisis - Latin for "Let the decision stand" - is a venerable one, and there are good reasons for courts not lightly to ignore their past rulings. But from time to time they do so, and it really doesn't make sense to call it judicial activism when they do. After all, how can overruling a decision that was itself activist be properly labeled activist?

Q. But don't liberals complain that the current Supreme Court is activist because it has struck down some federal statutes, and mightn't they complain that overruling a decision like Roe v. Wade is activist?

A. They have and they might, but in their heart they know this is a bogus claim.

Q. Okay, so judicial activism is just a court ignoring the text of a law and substituting its own policy preferences. But why is this a left-versus-right argument?

A. It shouldn't be. And, indeed, sometimes judicial activism has led to results that liberals would presumably dislike. Exhibit A is, of course, the infamous Dred Scott decision, where Chief Justice Taney made up a constitutional prohibition against Congress limiting the spread of slavery. At the present time, judicial activism is being used by the left in the culture wars, but it has not always been so, nor will it always be so.

Q. So, probably there are instances where conservatives would like for judges to bend the Constitution's text one way, and liberals would like to bend the text the other way. But why shouldn't this be part of what judges do? Put bluntly: What's wrong with judicial activism?

A. What you're asking is, "What's wrong with judges ignoring the Constitution?" and the answer is the same as the answer to "What's wrong with the President (or Congress) ignoring the Constitution?" Sure, in the short term the Constitution may thwart policies or outcomes that this group or that group might prefer. But in the long run the Constitution protects us all, and it is perilous to urge any of the three branches of government to ignore it.