Judicial Activism Essay, Research Paper

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 today?s 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 mother?s 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 is found to receive greater votes in the bill passing process. If a bill is written vaguely there will be many different interpretations. In the defense of the court making a personal decision for childbirth in the case of Roe versus Wade the Supreme Court put many restrictions on the abortion process for mothers.

Clegg also writes that many people are confused over the real meaning to the idea of judicial activism. Some individuals think of activism as being on the ball or energetic. Likewise, being restraint would mean lazy and letting the caseload pile up. This is the way many individuals who do not understand see activism superficially. A more complicated view, however, still incorrect is when any decision that produces judicial power against the governmental branches is considered activism. Whether it is to overturn old precedents or to strike down a statute that is blatantly unconstitutional many individuals do not fully understand that this is not acting in an activist manner. If a court overturns a precedent that it feels to be unconstitutional then it is not being an activist court, because it is doing what it was designed to do.

The Judiciary system was designed to be the least dangerous branch (Clegg p.247). However, as pressure increases for greater response to issues in the world, this branch has received greater attention. In today?s society being restraint and not allowing personal views to interfere with your jobs? responsibility requires a great deal more energy. Judicial activism is still used as a check on the other branches. In my opinion activism has at times been abused, but there is good reason for its? existence. One way to help solve any unnecessary judicial control could be to write laws that can be easier to interpret and facilitate. Realistically, the only way to keep judicial activism out of the system is to make political executives and legislators lose political popularity by appointing activism judges.

In today?s Supreme Court the Chief Justice is William Rehnquist. He has made a rightward swing from the two previous Chief Justices, William E. Burger and Earl Warren. Rehnquist believes in trying to deal with cases first on the local level then proceeding form there. He wants to lesson the influence that the federal courts have on decisions (Garrow p.257). He has made much of his success in cases that dealt with distribution of power between states and the federal government. It does not seem that the Rehnquist court is activist due to his conservative views; however, it was his court that made the Roe versus Wade decision. At times the vote of the Chief Justice is not in the majority of the votes, then the decision falls in the hands of the swing voters. Often during these times it becomes the vote of Anthony Kennedy. The Supreme Court is then called the ?Kennedy Court.? For the reason that not one judge in the court can make an overwhelming difference in the final outcome, I feel that there cannot be a fully activist or restraint court.