Judicial Activism is a doctrine that describes the way a court should actively access its power as a check to the activities of governmental bodies, when it is thought that those bodies have exceeded their authority. Roger Clegg, vice president of the National Legal Center for the Public Interest describes his definition a little differently. He writes that it is the act of a judge abusing his/her power by asserting his/her opinion of what the law should be, instead of what it really is. Clegg feels that in its history the Supreme Court has often constructed new constitutional rights with no basis from constitutional background. Roger Clegg is a strong opponent of judicial activism.
He also feels that judges in todays courts are setting up policies, which they have no competence in doing, at the state and national level. Clegg says that policymaking needs to be left in the hands of elected officials. Judges are setting up gay-rights ordinances in Colorado and making welfare policy for illegal immigrants in California (Clegg p. 246). According to Clegg these are policies that legislative branch should be dealing with, not the judicial branch.
When judges take on policymaking they take it out of the hands of qualified members. They also remove it from the compromising political process. He says that an activist court is not one that makes decisions based on the Constitution but by personal views. According to Clegg, one of the best examples of judicial activism was the Supreme Courts’ decision between Roe versus Wade. The court constructed a constitutional right to abortion. This very controversial issue needed to be further discussed before the Supreme Courts ruling.
Their decision took the issue out of the hands of our elected officials. The Supreme Court judges quickly decided that under the Constitution, the right to privacy was broad enough to include the mothers decision to abort. No court should have the jurisdiction to make this personal and questionable decision. Another example of activism was during the Supreme Court case of Dred Scott versus Sanford. The Dred Scott decision made by the Supreme Court said that African Americans are not citizens and should not be given the privileges of citizenship. The courts invented the absolute right that slaveholders can do whatever they chose with their property.
Looking back on these Supreme Court decisions it is seen that the judges made some difficult decisions to quickly and also allowed their own wishes to take the place of Constitutional rights. Activism is sometimes paired with liberalism and restraint is paired with conservatism. However, there are liberal judges that can be restraint and vice versa. It is sometimes quite difficult to determine whether a judge will decide one way or the other on any issue.
Clegg writes that judges at any level must face great internal and external pressures to be activist from the media and political opinion. In many social atmospheres judges get greater acknowledgement if he/she is known for speeding up the political process. Also interest groups love to work with only one or two judges to pass a particular policy than working with an entire electorate. However, being an activist means that you are also susceptible to personal, social, and political pressures to refrain from continuing activism. With great pressure to choose one side or another it can be quite easy for a mediocre judge to make a bad judgment.
In defense of judicial activism, Clegg writes that there is basic human nature is rooted in wanting to demonstrate personal views. First he writes that individuals going into the political field have the desire to show their strong views of the way the government ought to be organized. Secondly he writes that individuals that go into government often have the desire to initiate change in their surroundings. This could possibly be done through joining an interest group or the individual might wish to force change through his or her own views while in a position of power. Additionally, judges should not be criticized for misinterpretation of badly written laws.
Politicians sometimes do write poorly detailed bills. They do this for the very fact that the more vague a bill is written the more often it .
