What is judicial activism? Who is a judicial activist?

Great Debates
1

Judicial activism comes down to making law. Among other formats, a law can be in the form of a state statute, a federal statute, or the U.S. Constitution. Article I, section 8, clause 18 of the U.S. Constitution states that Congress shall have the power to make all law. Every state Constitution has a similar provision.

If a judge makes law, then that judge is a judicial activist who engaged in judicial activism. If a judge implements the law as enacted by the legislature, then that judge is doing their job.

This leads to the question: what does it mean to make law? Making law comes down to two things: (i) creating the language of a law and (ii) giving meaning to the language terms in a law. The debate on judicial activism comes down to the second part: (ii) giving meaning to the language terms in a law.

If a judge gives a meaning to a language term in a law, then that judge is making law and is a judicial activist.

So what is the difference between "giving meaning" to a language term in a law and "implementing" the legislator's meaning of a language term in a law? The answer lies in the evidence a judge selects to assert a meaning of a language term in a law.

Evidence can either come from one of two sources. The first source (intrinsic evidence) is from the legislators themselves. For example, Congress uses the Congressional Record to record its evidence of its meaning of a language term in a law. The second source is from everywhere but the Congressional Record. The second source (extrinsic evidence) includes dictionary definitions, previous court opinions, the writings of legal scholars, and the judges personal beliefs.

If a judge uses the second source as the evidence of the meaning of a language term in a law, then that judge will give his/her own meaning to the language term in a law. Here, the judge is a judicial activist engaged in the practice of judicial activism.

If a judge uses the first source as evidence of the meaning of a language term in a law, then that judge will implement the legislator’s meaning of the language term in a law. Here, the judge is performing the job for which they were hired.

How do I spot judicial activism? In a court issued opinion, look at the source of the evidence that the judge uses to give meaning to a language term in a state statute, federal statute, or the U.S. Constitution. If the source of the evidence is from dictionary definitions, previous court opinions, the writings of legal scholars, orthe judges personal beliefs, then you have just found an example of judicial activism.

END OF DOCUMENT

2

I would agree with the OP with one serious quibble.

The idea that the judge should restrict interpretation to following the record of the legislators has a tendency to come apart when legislators pass vaguely worded laws with little or no debate. It also comes apart when legislators pass laws that actually have sections that contradict each other without specifying that one supersedes the other.

Adjudicating those matters might be activism, but it can be a necessary activism (in that case) to ensure that the law continues to function. (The alternative is to have police arresting public officials for carrying out one law while the official insists that s/he is carrying out another law. Laugh? It has happened.)

(It isn’t as though we pick legislators for their clarity of thought or ability to treat a matter logically.)

3

I think I’d go with a different definition of judicial activism - When a court decision expands or contracts a the rights allowed under the law or constitution in a manner allowed for by the language of the law or constitution, but not contemplated by the writers of that language.

Another definition is when a court rules in a way you don’t like :wink:

I have serious problems with your intrinsic/extrinsic evidence distinction. As for legislative history, it is traditionally far down the list of sources a common law court should look to. The primary problem with it is that the legislature had the opportunity to put the points made in the legislative history into the law itself, and chose not to. Often, legislative history is one legislator’s opinion, not that of the entire legislative body. Finally, legislative history is for the most part non-existant in most states in this country. As a side note, Justice Scalia, who certainly doesn’t consider himself a judicial activist (though others disagree :)) has written several scathing denunciations of the use of legislative history.

As for your problems with “extrinsic evidence”, I think you are wrong on two counts. First, looking to other court decisions (precedent). Looking to precedent is the very basis of the English/American common law system. Indeed, when the precedent is from superior court, the court is required to follow that precedent. When the precedent is from the same court, the principle of stare decisis, while not requiring that the precedent be followed, is highly favored as stability in the law is considered of paramount importance.
Second, dictionary definitions are vital, particularly to those judges trying not to be judicial activists. The “plain language” of the law is what the terms used in the law are defined to mean. The generally accepted source of definitions of terms is a dictionary. Perhaps you mean something different, but the concept of a judge turning to a dictionary to find out what a term used by the legislature means is common sense rather than judicial activism.
Personally, when I’m writing a brief, I only use dictionary definitions as a form of sarcasm, where the opposing side has twisted a term completely. It’s most effective.

Sua