Judicial activism

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Judicial activism refers to judicial rulings suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint.[1] The definition of judicial activism, and which specific decisions are activist, is a controversial political issue, particularly in the United States. The question of judicial activism is closely related to constitutional interpretation, statutory construction, and separation of powers.

Origins of the term[edit]

Arthur Schlesinger Jr. initially introduced the term "judicial activism" in a January 1947 Fortune magazine article titled "The Supreme Court: 1947".[2] Today, use of the phrase borders on the ubiquitous. As Keenan Kmiec[3] observes, "[d]uring the 1990s, the terms "judicial activism" and "judicial activist" appeared in an astounding 3,815 journal and law review articles.' In the first four years of the twenty-first century, these terms have surfaced in another 1,817 articles-an average of more than 450 per year."[4] But long before that, the general concept already existed. For example, Thomas Jefferson referred to the "despotic behaviour" of Federalist federal judges, in particular, John Marshall.[5]

The phrase has been controversial since it was first coined. An article by Temple University law professor Craig Green,[6] "An Intellectual History of Judicial Activism," is critical of Schlesinger's use of the term, noting that "Schlesinger's original introduction of judicial activism was doubly blurred: not only did he fail to explain what counts as activism, he also declined to say whether activism is good or bad."[7] But as Australian constitutional scholar Greg Craven laments, "[j]udicial activism is one of those phenomena far more often talked about than defined."[8]


While Judge Robert Bork speaks of the rule of judges[9] as a worldwide phenomenon, academic discussion of the subject relies heavily on American constitutional theory—even in Africa.[10] Americans were the first to come to grips with pertinent issues, due largely to the fact that in the mid-20th century, the independence American judges enjoyed was unique. By way of example, as Bron McKillop[11] of the University of Sydney observes, prior to enactment of their 1958 Constitution, French judges were little more than civil servants, tasked simply with "apply[ing] syllogistically legislative texts to particular cases."[12] Most of the world lived under either autocratic regimes or a parliamentary system of government, where the legislatures enjoyed sovereignty, limiting the scope[13] of activism. Universal adoption of human rights treaties and bills of rights and the creation of the European Union has increased judicial activism in many parts of the world, such as Europe (albeit not that uniformly),[14] Canada,[15] Australia,[16] India,[17] and much of Africa,[18] but the American debate enjoys almost universal application.[19]

Even in dictionaries, the definition of judicial activism is a moving target. Black's Law Dictionary defines "judicial activism" as a "philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions."[20] An earlier version of Black's is more partisan, proclaiming that it is "a philosophy which motivates judges to depart from strict adherence to judicial precedent in favor of progressive and new social policies which are not always consistent with the restraint expected of appellate judges."[21] Preferring the term "legitimacy," law professor Kermit Roosevelt III of the University of Pennsylvania suggests that "in practice 'activist' turns out to be little more than a rhetorically charged shorthand for decisions the speaker disagrees with."[22] But in his review of Roosevelt's book, Professor Matthew Franck[23] contends that "his case against the expression’s use, and his proposed substitute categories of analysis, are both weak," and that "[i]t may instead be the conclusion of an argument of considerable sophistication and depth regarding the proper uses of judicial power."[24]

Once thought to be a phenomenon largely unique to America,[25] judicial activism is described by Judge Robert Bork as a "judicial disease, one that knows no boundaries."[26] As virtually the entire world has ratified the International Covenant on Civil and Political Rights—an international bill of rights[27]—judiciaries are now charged with authoritatively declaring what it prohibits, without meaningful legislative input.[28] Whereas Bork argues that it is an undesirable consequence of having a bill of rights as an integral part of a nation's paramount law,[29] and Alexander Hamilton concedes in The Federalist that "if [judges] should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body," Hamilton argues that courts must have authority "to declare all acts contrary to the manifest tenor of the Constitution void ... [or] all the reservations of particular rights or privileges [in the Constitution] would amount to nothing."[30]

Although America's Founding Fathers and their English forebears never actually used the term, they had a sophisticated understanding of what an activist decision was. In Anglo-American jurisprudence, the office of the judge was traditionally understood as jus dicere—authority to declare the law, as opposed to writing it.[31] Sir Edward Coke maintained that "[i]t is the function of a judge not to make, but to declare the law, according to the golden mete-wand of the law and not by the crooked cord of discretion."[32] Sir William Blackstone adds that the judge is "sworn to determine, not according to his own judgments, but according to the known laws."[33] Under this system, as Alexander Hamilton observes in The Federalist that judges are "bound by strict rules and precedents [the doctrine of stare decisis and canons of construction (see statutory interpretation)], which serve to define and point out their duty in every particular case before them."[34] Thomas Jefferson envisioned the judge as "a mere machine," expecting that the law "be dispensed equally & impartially to every description of men."[35] As in all but the most exotic cases, controlling law is established, the judge was envisioned as an administrator, playing what Professor Karl Llewellyn called "the game of matching cases."[36]

The Founding Fathers' definition of activism, expressed in terms of judges exceeding their mandates, is widely embraced by judges throughout the world. According to Justice Stephen Breyer, whenever a judge knowingly exceeds this mandate, substituting his/her will for "principled and reasoned"[37] judgment by misrepresenting the facts and/or law, that judge has indulged in "judicial activism." Explaining his decision in Kitzmiller v. Dover Area School District, federal district court judge John E. Jones III summarizes:

Had I determined the facts in a way that was not based in the testimony, or if I had disregarded established law … then [his decision] would have been the true work of an activist judge. … That would be ad hoc justice, and if we allow courts to do this -- and we don’t -- our legal system would descend into anarchy and ultimately, it would collapse.[38]

Scholars have struggled mightily to formulate a more precise definition of judicial activism. Harvard professor Mark Tushnet notes six meanings of the term "activist": (1) when courts decide issues not actually before them, (2) when courts readily disregard precedent without first having determined that actual "problems have[] arisen in the administration of the [prior] rule," (3) decisions that "substitute[] the judgment of unelected judges for those of elected decision makers," (4) certain uses and abuses of "the jurisprudence of 'original intention,"' (5) cases in which "an activist court is an arm of an activist government," and (6) as a "praise" or "blame" word).[39] Professor William Marshall[40] identifies what he calls the "seven deadly sins" of activism: (1) counter-majoritarian activism (inappropriate reluctance to defer to legislative judgment[41]), (2) non-originalist activism (invoking the purported "Living Constitution") (3) precedential activism (unjustified failure to follow precedent[42]), (4) jurisdictional activism (deciding cases outside of a court's proper jurisdiction[43]), (5) judicial creativity (creation of new theories and rights sua sponte), (6) remedial activism, and (7) partisan activism.[44]

"Judicial Inactivism": Another Form of Activism?[edit]

Another remarkably common form of judicial activism is what Professor Chad Oldfather[45] termed "judicial inactivism": a willful refusal by judges to decide questions and cases properly before their courts,[46] which Chief Justice John Marshall described as "treason to the Constitution."[47] In the American Supreme Court, this means using the power of discretionary review to manage dockets and avoid deciding controversial questions if at all possible, a practice described by Yale Law professor Alexander Bickel as exercising the "passive virtues."[48] (Whether this practice is itself constitutional is open to question, for if a citizen has a right to "equal and impartial justice under the law,"[49] and "[t]o take away all remedy for the enforcement of a right is to take away the right itself,"[50] refusal to correct an indisputably erroneous lower court decision deprives that citizen of that right by definition.[51]) At the intermediate court level, it is used a means of docket control as, according to Judges Richard Arnold of the Eighth Circuit[52] Alex Kozinski of the Ninth Circuit,[53] and Justice Breyer,[54] a typical federal appeal garners no more than a few minutes of the Panel's attention, which means that they are routinely oblivious to or knowingly elide important questions of law. Senior Judge Richard Posner of the Seventh Circuit describes the practice as "sort of a formula for irresponsibility,"[55] further admitting that "for me, for everybody in the judiciary, there’s probably a high error rate."[56] Professor Oldfather suggests that that their error rate may be as high as 60%, based on the empirical data.[57] causing Professor John Oakley[58] of UC-Davis to question whether "courts of appeals have become so concerned with preserving their precedent-making function that they are neglecting their error-correction function."[59] As Professor Penelope Pether[60] writes, "[a]lthough litigants have appeals as of right to the federal courts of appeals, what happens in a wrongly or sloppily or unsafely or arbitrarily decided case is effectively a certiorari decision masquerading as an appeal as of right."[61]

Judge Kozinski and his colleague Stephen Reinhardt argue that this two-track system of appellate justice, wherein Judge Kozinski "routinely work[s] through 50 or more drafts" of a published opinion, and writes opinions "precisely for the purpose of getting into" legal casebooks,[62]—while barely glancing at the bulk of his workload[63]—is the most efficient use of Court time.[64] University of Toledo law professor William Richman[65] counters: "This is judges disobeying the law."[66]

There is some evidence that, even at the trial court level, federal judges are rationing justice, thereby denying citizens their day in court. Harvard professor and retired federal district judge Nancy Gertner asserted that trial judges are quite literally trained on "how you get rid of [pro se civil rights] cases."[67] Judge Mark Bennett of the Northern District of Iowa admitted overusing summary judgment for the purpose of clearing his docket, further lamenting that "not one of those decisions was overturned on appeal."[68] Erickson v. Pardus is a paradigmatic illustration of judicial neglect—precipitating an unusually stern rebuke from the Supreme Court[69]—but as Professor Scott Dodson suggests, the Court may not have been merely exercising its inherent supervisory authority in overturning the lower courts' decision.[70] The overall effect of this inactivism has been, in the assessment of Professor Erwin Chemerinsky, a 'closing of the courthouse doors' to civil rights litigants, showing "a profound disrespect for the importance of the judicial process to injured individuals."[71]

Obergefell: An Illustration of the Bounds of Judicial Activism[edit]

One of the persistent difficulties in defining judicial activism is in distinguishing a genuinely activist decision from one where reasonable judges could disagree. The 2015 Supreme Court decision legalizing same-sex marriage (Obergefell) serves as an illustration of this tension, especially as it applies to the doctrine of originalism. On the one hand, when viewed from the lens of textualism, wherein it is presumed that, as Justice Clarence Thomas observes, the authors of legislation "[say] in a statute what it means and mean[ ] in a statute what it says there,"[72] the right of same-sex couples to marry is hard to dispute. In short, as the right to own private property is an essential element of personal liberty, and the right to enter into contracts is a critical aspect of that right, it is one retained by the people, which can only be impaired by the State where it has lawful authority to do so.[73] And as Justice Antonin Scalia lamented in his Lawrence v. Texas dissent, in acknowledging a constitutional right to engage in sodomy, the Court conceded that the government had no residual authority to prohibit same-sex marriages.[74]

However, under the "expected application" form of originalism,[75] "[i]f the Framers would have expected the Constitution to permit something, then it is permitted today, and if they would have expected it to preclude something, then it is precluded today."[76] Distilled to essentials, a constitution is a contract, and the first rule of contractual interpretation is that you are to read it in such a way as to effectuate the intent of the parties.[77] In a bench statement in Arizona v. United States, Justice Scalia summarized this view: "Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding?"[78] This translates into the Scalian objection that "[s]ince there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue."[79]

The fundamental flaw with the Scalian formulation, as seen by Professor Randy Barnett, is brought to the fore by Justice Clarence Thomas: judges are "invited" to "‘roa[m] at large in the constitutional field’ guided only by their personal views" as to the "‘fundamental rights’" protected by that document."[80] Chief Justice Roberts adds: "Allowing unelected federal judges to select which unenumerated rights rank as fundamental—and to strike down state laws on the basis of that determination—raises obvious concerns about the judicial role."[81] Professor Barnett's thesis is that the Ninth Amendment means what it says,[82] and as such, "individual natural rights had the same stature and force after some of them were enumerated as they had before."[83] This creates what Barnett describes as a "presumption of liberty," wherein the government must show that it has lawful authority to invade one's natural rights, thereby limiting judicial discretion; how far this presumption actually goes remains a matter for robust academic debate.[84]

American Rhetorical Application of the Term[edit]

Justice Hugo Black observed that "the layman's constitutional view is that what he likes is constitutional and that which he doesn't like is un-constitutional."[85] While the lawbooks are replete with pristine examples of judicial activism at every level, on both the right and the left,[86] in the world of partisan politics, the term is often a vehicle for demagoguery: "[B]oth sides' arguments are hopelessly muddled and contradictory, ultimately calling for curbing judicial excesses only when the outcomes are contrary to their own policy desires."[87]

When legally-trained conservative partisans such as Phyllis Schafly, Mark Levin, and televangelist Pat Robertson complain about "judicial activism," it is always committed by liberals,[88] and the statements are usually made for pecuniary and/or political advantage. Famed televangelist Jerry Falwell's bromide that "if you're going to be successful, keep a fight going all the time"[89] applies as well to politics as religion. As Oregon Supreme Court justice Jack Landau counters, it is "the verbal equivalent of a can of spray paint wielded by those who are unwilling or unable to engage in the rigorous and responsible discourse of citizenship."[90]

Liberal ire is generally aimed at decisions like Citizens United[91] (money is speech), Shelby County v. Holder[92] (racism is over), and McDonald v. City of Chicago and District of Columbia v. Heller[93] (scope of the Second Amendment). While a powerful argument could be made that Shelby County was a case of counter-majoritarian judicial activism, with the Court substituting its judgment for that of Congress,[94] for the most part, liberal charges of judicial activism also tend to distill to "we lost." Whereas, as Judge Frank Easterbrook put it, "[e]veryone scorns judicial 'activism',"[95] on both sides of the aisle, the outrage is notoriously selective: "For conservatives, the recent confirmation battles were about ending liberal judicial activism. And for liberals, they were about preventing a conservative judicial revolution."[96]

On July 22, 2015, Republican presidential hopeful and former Supreme Court law clerk Sen. Ted Cruz convened a Senate subcommittee hearing entitled "With Prejudice: Supreme Court Activism and Possible Solutions."[97] Early in his opening statement, he claimed that "in this last Term, the Court crossed a line— continued its long descent into lawlessness to a level that I believe demands action."[98] Mangling precedent for rhetorical advantage,[99] Cruz solemnly declared that "to anyone actually interpreting constitutional text, none of these rights [including most notably, the right to an abortion ] have any basis in the Constitution,"[100] essentially disclaiming his entire Princeton thesis. In much the same manner, during her Senate confirmation hearing, Justice Elena Kagan disowned her own Oxford graduate thesis.[101]

Even among sitting judges, charges of judicial activism are usually outcome-driven. By way of example, Justice Daniel T. Eismann[102] of the Idaho Supreme Court complained: "There is a saying that hard cases make bad law. That saying is incorrect. It is courts that make bad law in the process of deciding cases based solely upon whom they want to win or lose."[103] Dissents are often colorful: "I don’t know what was in the Kool-Aid they were drinking, but I believe that the opinion is one of the most factually misleading and legally pernicious cases to be produced by this Court."[104] A rare exception is that of Judge Richard Posner—whom Justice Kagan lauded as "the most important legal thinker of our time"[105]—who candidly admits that judges "are constantly digging for quotations from and citations to previous cases to create a sense of inevitability about positions that they are in fact adopting on grounds other than deference to precedent," a process he calls "fig-leafing."[106] As Professor Martin Shapiro[107] famously summarized, "[c]ourts and judges always lie."[108]

Littered with such bizarre obscurantisms as "argle-bargle"[109] and "jiggery-pokery,"[110] Scalian dissents offer a persistent, acerbic, and incisive denunciation of judicial activism. In Planned Parenthood v. Casey, he writes: "The Court's temptation is in the quite opposite and more natural direction—towards systematically eliminating checks upon its own power; and it succumbs."[111] In Umbehr, he laments that the Court is "busy designing a Constitution for a country I do not recognize."[112] In Arizona v. United States, he offered an acid test of constitutionality in a bench statement: "Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding?"[78] In his Obergefell dissent, he outlines the main evil of judicial activism: "[M]y Ruler … is a majority of the nine lawyers on the Supreme Court," who have "rob[bed] the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves."[113] But when he gets to be ruler, the problems with judicial activism magically disappear.[114]

Sitting judges like Anthony Kennedy often invoke the bromide that "[a]n activist court is a court that makes a decision you don't like"[115][116] in a defensive manner, to deflect legitimate charges of judicial activism. An illustrative case is Alden v. Maine, wherein the Court held that a citizen could not sue his own State in federal court on grounds of sovereign immunity unless it was expressly waived, despite the fact that, as Justice John Paul Stevens ably points out, the plain language of the Constitution permitted it.[117] What made that decision especially curious was that Justice Scalia provided the fifth vote, despite his scholarly conclusion that "there was no doctrine of domestic sovereign immunity [in America], as there never had been in English law,"[118] and that a healthy number of state supreme courts concluded that their states didn't have sovereign immunity to begin with.[119] The Court's position broke with precedent[120] and the considered judgment of one of the actual delegates to the Constitutional Convention of 1787 that a State, in ratifying the Constitution, "[gave up] her right of sovereignty," to the extent it is necessary to give it force.[121]


In Earlier Generations[edit]

On both sides of the Pond, the people of the Founding Fathers' generation would undoubtedly be astounded that people in the 21st century would even be having this debate at all. In his magnum opus, The History of the Decline and Fall of the Roman Empire, English historian and Member of Parliament Edward Gibbon observed that "the discretion of the judge is the first engine of tyranny."[122] Charles de Secondat, Baron de Montesquieu, whose theories heavily influenced the structure of the American federal government,[123] wrote that "[c]onstant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go."[124] The thought that anyone—least of all, an unelected and unaccountable official—should possess unchecked power was disfavored by political theorists of the day.[125]

In an address to the Virginia Assembly, James Madison observed that rulers who "exceed the commission from which they derive their authority ... are Tyrants [and] [t]he People who submit to it are governed by laws made neither by themselves, nor by an authority derived from them, and are slaves."[126] Given that they enacted the Seventh Amendment to preserve the common law jury trial—described by Framer John Dickinson as a "Heaven-taught institution"[127]—the purpose of which was, in the words of Framer Elbridge Gerry, "to guard agst. corrupt Judges,"[128] the notion that judges should be able to exercise a judicial veto over even the Constitution itself would have been anathema to the Framers, for in the words of Thomas Jefferson, it merely changes "this master for that."[129] But that is precisely what judicial activism is: "enact[ing] a law under the pretense of construing one."[130] As Professor Howard Abadinsky[131] observes, while the Marshall Court declared in dictum in Marbury v. Madison that it had lawful authority to invalidate an act of Congress as unconstitutional, it never exercised that prerogative.[132]

The Modern View[edit]

The modern view is less absolutist. In what was billed as a "mini-symposium," Vanderbilt professor Suzanna Sherry argues that courts "should stand in the way of democratic majorities, in order to keep majority rule from degenerating into majority tyranny."[133] further claiming that "an examination of constitutional practice shows that too little activism produces worse consequences than does too much. If we cannot assure that the judges tread the perfect middle ground (and we cannot), it is better to have an overly aggressive judiciary than an overly restrained one."[134] Citing notorious examples like Plessy v. Ferguson[135] ("separate but equal"), Buck v. Bell[136] (forced sterilization), and Korematsu v. United States[137] (Japanese internment), her thesis is that when our courts have screwed up most spectacularly, it is because they were too deferential.[138]

Citing Seminole Tribe of Fla. v. Florida[139] (essentially, a companion case to Alden v. Maine, analyzed above) Sherry's colleague Scott Dodson[140] points out in response that that unabashedly activist decision "constitutionally enhanced, in a way unremediable by Congress, a State’s ability to harm individuals without fear of private suit for damages."[141] In the words of Justice Robert Jackson, "Unrestricted majority rule leaves the individual in the minority unprotected,"[142] but as Dodson observes, unrestricted judicial rule can also leave the individual unprotected, as well.[141]

The larger conceptual question—not whether judges should have more discretion, but whether the Constitution grants it to them—was left unanswered by Professor Sherry and her supporters, as she relies on the assumption that the Framers intended to give federal judges broad discretion.[143] Sherry cited no direct support for that proposition, which the Framers seem to eschew in their writings. As Justice Scalia adroitly put it, "the Constitution that I interpret and apply is not living but dead—or, as I prefer to put it, enduring. It means today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted."[144] His view has direct support in the writings of Madison and Jefferson,[145] and one may fairly question whether the judge-fearing Elbridge Gerry would have embraced a regime where judges were endowed with such discretion.[citation needed]

Effects of The Living Constitution[edit]

A broader challenge comes from advocates of a Living Constitution, which changes with the times. A tale told by the late Judge Robert Bork illustrates the gravamen of the dispute between its advocates and the so-called originalists:

There is a story that two of the greatest figures in our law, Justice Holmes and Judge Learned Hand, had lunch together and afterward, as Holmes began to drive off in his carriage, Hand, in a sudden onset of enthusiasm, ran after him, crying, "Do justice, sir, do justice." Holmes stopped the carriage and reproved Hand: "That is not my job. It is my job to apply the law."[146]

To Living Constitution advocates, it is the duty of courts to provide "justice" when "other branches of government have abdicated their responsibility."[147] And by necessity, this requires judges to fashion remedies the law may not expressly provide for, qualifying as activism under the Tushnet/Marshall definition. On the one hand, courts have always had some latitude in this regard, as it "is a monstrous absurdity in a well organized government, that there should be no remedy, although a clear and undeniable right should be shown to exist."[148] On the other, as Chief Justice Rehnquist cautions, it is difficult to find a rationale by which "judges, responsible to no constituency whatever, are [to be] acclaimed as 'the voice and conscience of contemporary society.'"[147] As such, the modern debate circles not around whether judges should engage in activism, but what level of activism is called for. Professor Sherry calls this "Baby Bear" activism, wherein judges should indulge "when, and only when, We the People act in ways that we will later consider shameful or regrettable."[149]

The question of where to draw the line is at the center of modern debate. At one end of the spectrum is Professor William E. Nelson[150] of NYU, who would have judges repeal the Seventh Amendment by fiat on the grounds that, in his humble opinion, it is no longer needed.[151] On the other end is Justice Scalia, who complains that "[the Supreme] Court has no business imposing upon all Americans [resolutions] favored by the elite class from which the Members of this institution are selected,",[152] on the ground that it usurps the power of elected branches of government, purportedly damaging the rule of law and democracy. Justice Roberts appears to embrace the middle ground described as judicial minimalism, placing "great stock in the process-oriented tools and doctrinal rules that guard against the aggregation of judicial power and keep judicial discretion in check."[153] but his minimalism has been alleged to be somewhat outcome-driven and selective.[154]

Judicial Activism vs. Judicial Review and Judicial Supremacy[edit]

Judicial activism should be distinguished from the related concepts of judicial review and judicial supremacy. The latter two presuppose that judges apply the law of the land to the facts of the case in a transparent and intellectually honest manner, as required by their oaths of office,[155] with the salient distinction being one of finality. Whereas under the English system of parliamentary sovereignty, Parliament can overturn any judicial decision,[156] in American jurisprudence, the Supreme Court is, at least with respect to questions involving constitutional interpretation, "not final because we are infallible, but we are infallible only because we are final."[157] "Judicial activism" speaks to that often-difficult to define point where judges are either imposing their will on society, or merely filling in gaps or resolving uncertainties in the law.[158]


The following are cited as examples of judicial activism:

By geography[edit]

While the term was first coined and is often used in the United States, it has also been applied in other countries, particularly common law jurisdictions.


India has a recent history of judicial activism, originating after the emergency in India which saw attempts by the Government to control the judiciary. The Public Interest Litigation was an instrument devised by the courts to reach out directly to the public, and take cognizance though the litigant may not be the victim."suo motu" cognizance allows the courts to take up such cases on its own. The trend has been supported as well criticized.[citation needed] New York Times author Gardiner Harris sums this up as[166]

India’s judges have sweeping powers and a long history of judicial activism that would be all but unimaginable in the United States. In recent years, judges required Delhi’s auto-rickshaws to convert to natural gas to help cut down on pollution,[167][168] closed much of the country’s iron-ore-mining industry to cut down on corruption and ruled that politicians facing criminal charges could not seek re-election. Indeed, India’s Supreme Court and Parliament have openly battled for decades, with Parliament passing multiple constitutional amendments to respond to various Supreme Court rulings.

All such rulings carry the force of Article 39A of the Constitution of India,[169] although before and during the Emergency the judiciary desisted from "wide and elastic" interpretations, termed Austinian, because Directive Principles of State Policy are non-justiciable. This despite the constitutional provisions for judicial review and B R Ambedkar arguing in the Constituent Assembly Debates that "judicial review, particularly writ jurisdiction, could provide quick relief against abridgment of Fundamental Rights and ought to be at the heart of the Constitution."[170]

Fundamental Rights as enshrined in the Constitution have been subjected to wide review, and have now been said to encompass a right to privacy, right to livelihood and right to education, among others. The 'basic structure' of the Constitution has been mandated by the Supreme Court not to be alterable, notwithstanding the powers of the Legislature under Article 368.[169] This was recognized, and deemed not applicable the High Court of Singapore in Teo Soh Lung v. Minister for Home Affairs.[citation needed]

Recent examples quoted include the order to Delhi Government to convert the Auto rickshaw to CNG,[167] a move believed to have reduced Delhi's erstwhile acute smog problem (it is now argued to be back)[171] and contrasted with Beijing's.[172]


The Israeli approach to judicial activism has transformed significantly in the last 3 decades, and currently presents an especially broad version of robust judicial review and intervention.[173][174][175] Additionally, taking into consideration the intensity of public life in Israel and the challenges that the country faces (including security threats), the case law of the Israeli Supreme Court[176] touches on diverse and controversial public matters.[citation needed]

United States[edit]

In practice, the term has been largely denuded of meaning, insofar as it has become increasingly synonymous with "judicial decisions the speaker does not like." In America, this is arguably due in large part to the fact that many Americans have lost "confidence in the judge as an impartial guardian of the rule of law,"[177] as modern judges have become reliable proxies for the factions selecting them—a state of affairs more pronounced in political disputes[178] and hot-button social issues.[179] Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals explains this form of judicial activism in terms of the ways that his colleagues purportedly indulge:

Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. … When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases—or even the white spaces between lines of constitutional text. But ... when we're none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.[180]

American jurisprudence is replete with pellucid examples of judges constitutionalizing their personal preferences, including the evisceration of the Seventh Amendment,[181] enactment of a "second Eleventh Amendment" forbidding the citizen from suing his or her state of residency in federal court,[182] and the invention of domestic sovereign immunity.[183] Treaties[184] and plainly written statutes[185] routinely fall victim to the "judicial veto,"[186] under rationales demonstrating varying degrees of respect for what Chief Justice Roberts described as "precedent on precedents."[187]

See also[edit]


  1. ^ Christopher Wolfe, Judicial activism, Rowman & Littlefield, ISBN 0-8476-8531-4.
  2. ^ Kmiec, Keenan D. (2004). "The Origin and Current Meanings of 'Judicial Activism'". Cal. L. Rev. 92: 1441, 1447. Schlesinger's article profiled all nine Supreme Court justices on the Court at that time and explained the alliances and divisions among them. The article characterized Justices Black, Douglas, Murphy, and Rutledge as the 'Judicial Activists' and Justices Frankfurter, Jackson, and Burton as the 'Champions of Self Restraint.' Justice Reed and Chief Justice Vinson comprised a middle group. 
  3. ^ Currently an attorney in private practice, at the time, Kmeic was serving as one of Justice Samuel Alito's law clerks; bio at http://www.hunterkmiec.com/about.html
  4. ^ Keenan D. Kmiec, The Origin and Current Meanings of Judicial Activism, 92 Cal. L. Rev. 1441 (2004) (citations omitted), available at: http://scholarship.law.berkeley.edu/californialawreview/vol92/iss5/4.
  5. ^ Haines & Sherwood, The Role of the Supreme Court in American Government and Politics: 1789–1835, 1944, p.209
  6. ^ Current bio at http://www.law.temple.edu/contact/craig-green/
  7. ^ "An Intellectual History of Judicial Activism" Craig Green, August 2008, p. 4
  8. ^ Greg Craven, "Reflections on Judicial Activism: More in Sorrow than in Anger," speech (to Samuel Griffith Society: Perth, Australia) (Oct. 24-26, 1997), available at http://www.samuelgriffith.org.au/papers/html/volume9/v9chap9.htm
  9. ^ Robert H. Bork, Coercing Virtue: The Worldwide Rule of Judges (AEI Press 2003)
  10. ^ See e.g., Anthony C. Diala, Judicial Activism at South Africa's Constitutional Court: Minority Protection or Judicial Illegitimacy? (L.L.M. thesis, Makarere U. (Uganda)) 5-17 (Oct. 29, 2007), at http://www.academia.edu/2123795/Judicial_Activism_at_South_Africas_Constitutional_Court_Minority_Protection_or_Judicial_Illegitimacy (His "conceptual framework" is substantially similar to the one developed here, using many generally-accepted terms.); EK Quansah and CM Fombad, Judicial Activism IN Africa: Possible Defence Against Authoritarian Resurgence? 3 & n. 2 (undated essay; both are law professors at the University of Botswana), at http://www.ancl-radc.org.za/sites/default/files/Judicial_Activism_in_Africa.pdf (quoting The Federalist); Lipika Sharma, Judicial Activism in India (undated essay), at http://www.academia.edu/2148025/JUDICIAL_ACTIVISM_IN_INDIA_MEANING_AND_IMPLICATIONS (quoting Black's)
  11. ^ no on-line bio available
  12. ^ Bron McKillop, The Judiciary in France: Reconstructing Lost Independence, Judicial Commission of New South Wales (website; undated), at http://www.judcom.nsw.gov.au/publications/education-monographs-1/monograph1/fbmckill.htm.
  13. ^ It did not extinguish it entirely. In Dr. Bonham's Case, Lord Coke argued for judicial supremacy: "when an Act of Parliament is against Common right and reason, or repugnant, or impossible to be performed, the Common Law will controll it, and adjudge such Act to be void." Dr. Bonham's Case [1609] 8 Co. Rptr. 113b, 118a (C.C.P.) (one of the earliest documented instances of judicial activism)
  14. ^ See e.g., Nicola Ch. Corkin, Europeanization of Judicial Review (Routledge 2015) (Europe)
  15. ^ Charter Fights, The Economist (Jul. 7, 2014), at http://www.economist.com/blogs/americasview/2014/07/judicial-activism-canada (interpretation of the Canadian Charter of Rights and Freedoms)
  16. ^ James Allan, The Three 'Rs' of Recent Australian Judicial Activism: Roach, Rowe AND (NO)’Riginalism, 36 Melb. U. L. Rev. 743 (2012), at http://www.law.unimelb.edu.au/files/dmfile/36_2_11.pdf.
  17. ^ Vipin Kumar, "The Role of Judicial Activism in the Implementation and Promotion of Constitutional Laws and Influence of Judicial Overactivism", 19-2 IOSR J. Of Humanities & Social Sci. 20 (2014), at http://iosrjournals.org/iosr-jhss/papers/Vol19-issue2/Version-4/C019242025.pdf
  18. ^ "One of the key innovations of the constitutional rights revolution which swept through the African continent in the 1990s was the introduction of independent judiciaries." EK Quansah and CM Fombad, Judicial Activism IN Africa: Possible Defence Against Authoritarian Resurgence? (undated essay; both are law professors at the University of Botswana), at http://www.ancl-radc.org.za/sites/default/files/Judicial Activism in Africa.pdf.
  19. ^ See e.g., citations to American sources in the papers cited in this paragraph
  20. ^ As quoted in "Takings Clause Jurisprudence: Muddled, Perhaps; Judicial Activism, No" DF O'Scannlain, Geo. JL & Pub. Pol'y, 2002.
  21. ^ Black's Law Dictionary 847 (6th ed. 1990).
  22. ^ Kermit Roosevelt, III, The Myth of Judicial Activism: Making Sense of Supreme Court Decisions 3 (Yale U. Pr. 2006), ISBN 0-300-12691-3, ISBN 978-0-300-12691-4; excerpt at http://yalepress.yale.edu/yupbooks/excerpts/roosevelt_myth.pdf
  23. ^ bio at https://www.heartland.org/matthew-j-franck
  24. ^ Matthew J. Franck, The Myth of Judicial Activism: Making Sense of Supreme Court Decisions (book review), 17-2 Law and Politics Book Rev. 166, 166 (Feb. 2007), at http://www.lawcourts.org/LPBR/reviews/roosevelt0207.htm
  25. ^ Under the leadership of Aharon Barak, Israel is widely believed to have the most activist Supreme Court in the world, see e.g., Hillel Neuer, Aharon Barak's Revolution (undated), at http://www.daat.ac.il/daat/ezrachut/english/hillel.htm
  26. ^ Robert H. Bork, Coercing Virtue: The Worldwide Rule of Judges, i (AEI Press, 2010)
  27. ^ The generally-accepted definition is somewhat broader, including the hortatory Universal Declaration of Human Rights(which is essentially coterminous with the ICCPR) and International Covenant on Economic, Social and Cultural Rights
  28. ^ International Covenant on Civil and Political Rights, 4art. 3, § 2, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) (ratified by the United States Sept. 8, 1992)
  29. ^ Ibid.; see John Yoo, Taming Judicial Activism: Judge Robert Bork’s Coercing Virtue, 80 U. Chi. L. Rev. 257 (2013).
  30. ^ The Federalist No. 78 (Alexander Hamilton), reprinted at http://www.constitution.org/fed/federa78.htm
  31. ^ Francis Bacon, Essays LVI (Of Judicature) (1620).
  32. ^ 1 E. Coke, Institutes of the Lawes of England 51 (1642).
  33. ^ 1 Wm. Blackstone, Commentaries on the Laws of England 69 (1765).
  34. ^ The Federalist No. 78 (Alexander Hamilton), reprinted at http://www.constitution.org/fed/federa78.htm.
  35. ^ Thomas Jefferson, Letter (to Edmund Pendleton), Aug. 26, 1776.
  36. ^ Karl Llewellyn, The Bramble Bush 49 (1960).
  37. ^ Stephen Breyer, Making Our Democracy Work: A Judge’s View 83 (2010).
  38. ^ John E. Jones, III, "Judicial Independence and Kitzmiller v. Dover et al" (speech), Sept. 26, 2006, video available at http://www.hallcenter.ku.edu/video/index.shtml
  39. ^ Mark V. Tushnet, Comment: The Role of the Supreme Court: Judicial Activism or Self-Restraint?, 47 Md. L. Rev. 147, 147-53 (1987)
  40. ^ Current bio at http://www.law.unc.edu/faculty/directory/marshallwilliamp/ and http://www.fed-soc.org/experts/detail/william-p-marshall.
  41. ^ See Marbury v. Madison, 5 U.S. 137 (1803), for a discussion of when it is appropriate
  42. ^ In America, "[c]aselaw on point is the law" which a lower court must follow, "even if it considers the rule unwise or incorrect." Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001), as it is the Supreme Court's "prerogative alone to overrule one of its precedents." State Oil Co. v. Khan, 522 U.S. 3, 20 (1997), and even then, it may only do so in limited circumstances. See Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 854-55 (1992) (citations omitted) (discussing how the Court applies stare decisis).
  43. ^ Cf., Ex parte McCardle, 74 U.S. 506, 514 (1868) ("Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.").(
  44. ^ William P. Marshall, Conservatives and the Seven Sins of Judicial Activism, 73 U. Colo. L. Rev. 1217, ____ (2002) (SSRN draft at 5, PDF available for download at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=330266
  45. ^ bio at https://law.marquette.edu/faculty-and-staff-directory/detail/5170348
  46. ^ Chad Oldfather, Defining Judicial Inactivism: Models of Adjudication and the Duty to Decide, 94 Geo. L.J. 121 (2006).
  47. ^ Cohens v. Virginia, 16 U.S. 264, 404 (1821) ("[Judges] have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is to exercise our best judgment and conscientiously to perform our duty.")
  48. ^ Alexander M. Bickel, Foreword: The Passive Virtues, 75 Harv. L. Rev. 40 (1961), at http://digitalcommons.law.yale.edu/fss_papers/3968
  49. ^ Leeper v. Texas, 139 U.S. 462, 468 (1891).
  50. ^ Poindexter v. Greenhow, 114 U.S. 270, 303 (1884).
  51. ^ According to Justice James Wilson, who wrote Article III, the first purpose in creating a supreme court to "superintend" and govern all the others was to prevent "different courts [from adopting] different and even contradictory rules of decision." 2 The Works of James Wilson 149-50 (J. D. Andrews ed., 1896). Authority for discretionary certiorari review is ostensibly found in the Exceptions Clause, Tara L. Grace, The Exceptions Clause as a Structural Safeguard, 113 Columbia L. Rev. 292 (2013), at http://columbialawreview.org/wp-content/uploads/2013/05/Grove-T.L..pdf, but in the context of the Supreme Court's neglect of circuit splits, Wayne Logan raises the salient concern that failure to considers such cases is an "[abdication of] its core responsibility to clarify the meaning of a right, implicitly signaling to the public at large that [that right] is not sufficiently important to warrant the Court’s attention." Wayne A. Logan, Constitutional Cacophony: Federal Circuit Splits and the Fourth Amendment, 65 Vand. L. Rev. 1137, 11__ (2012), at http://www.vanderbiltlawreview.org/content/articles/2012/10/Logan_65_Vand_L_Rev_1137.pdf. The salient question—discussed in dozens of law review articles, collected at, Robert N. Clinton, A Mandatory View of Federal Court Jurisdiction: A Guided Quest for the Original Understanding of Article III, 132 U. Ps. L. Rev. 741, 742-44 & n. 3 (1984), at http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=4611&context=penn_law_review, is whether Congress has authority to essentially void Article III through stripping the courts of jurisdiction. This question is mostly academic in nature, as it has never been answered.
  52. ^ Perfunctory Justice; Overloaded Federal Judges Increasingly Are Resorting to One-Word Rulings, Des Moines Register, Mar. 26, 1999, at 12 (quoting Judge Arnold as saying that fifty appeals decided in two hours in an Eighth Circuit he participated in)
  53. ^ Alex Kozinski, Letter (to Judge Samuel A. Alito, Jr.), Jan. 16, 2004 at 5 (150 rulings made in a two-day session in the Ninth Circuit)
  54. ^ Stephen Breyer, Administering Justice in the First Circuit, 24 Suffolk U. L. Rev. 29, 32-33 (1990)(a typical appeal "takes only a little of their time")
  55. ^ William Graberson, Caseload Forcing Two-Level System for U.S. Appeals, N.Y. Times, Mar. 14, 1999
  56. ^ Joel Cohen, An interview with Judge Richard A. Posner, ABA J. Online, posted Jul. 1, 2014, at http://www.abajournal.com/magazine/article an_interview_with_judge_richard_a._posner/
  57. ^ Chad M. Oldfather, Remedying Judicial Inactivism: Opinions as Informational Regulation, 58 Fla. L. Rev. 743, 778 (2006) (noting that the 1960 reversal rate of 24.5% had declined to 9.4% by 2003)
  58. ^ bio at https://law.ucdavis.edu/faculty/oakley/
  59. ^ John B. Oakley, Precedent in the Federal Courts of Appeals: An Endangered or Invasive Species?, 8 J. App. Prac. & Proc. 123, 127 (2006) (further noting at page 126 that "the rate of reversal of the court below in appeals decided by the federal courts of appeals has fallen sharply, from not quite twenty-eight percent in 1955 to eighteen percent in 1975 and roughly ten percent in 2005.")
  60. ^ obituary at http://articles.philly.com/2013-09-14/news/42044401_1_john-gotanda-law-professor-criminal-law
  61. ^ Penelope J. Pether, Constitutional Solipsism: Toward a Thick Doctrine of Article III Duty; or Why the Federal Circuits’ Nonprecedential Status Rules are (Profoundly) Unconstitutional, 17 W.&M. Bill Rts. J. 955, 977 (2009); accord, William M. Richman and William L. Reynolds, Elitism, Expediency, and the New Certiorari: Requiem for the Learned Hand Tradition, 81 Cornell L. Rev. 273 (1996)
  62. ^ Emily Bazelon, "The Big Kozinski," Legal Affairs (Jan-Feb. 2004), at http://www.legalaffairs.org/issues/January-February-2004/feature_bazelon_janfeb04.msp
  63. ^ Tony Mauro, Difference of Opinion, Legal Times, Apr. 12, 2004 (quoting Judge Kozinski, who described unpublished opinions as "inedible sausage," unfit for human consumption).
  64. ^ Alex Kozinski and Stephen Reinhardt, "Please Don't Cite This! Why We Don't Allow Citation to Unpublished Decisions," Cal. Lawyer 43 (June 2000), reprinted at http://www.nonpublication.com/don't_cite_this.htm
  65. ^ bio at http://www.utoledo.edu/law/faculty/fulltime/RichmanW.html
  66. ^ Brigid McMenamin, "Justice in the Dark," Forbes, Oct. 30, 2000, available at http://www.forbes.com/forbes/2000/1030/6612072a_print.html.
  67. ^ Nancy Gertner (blog reply), Civil jury trials, summary judgment, employment cases and the Northern District of Georgia study–preliminary observations, Hercules and the Umpire (blog of Senior Judge Kopf of the District of Nebraska), Oct. 22, 2013, at http://herculesandtheumpire.com/2013/10/22/civil-jurytrials-summary-judgment-employment-cases-and-the-northern-district-of-georgia-study-preliminary-observations/; see generally, Erwin Chemerinsky, Closing the Courthouse Doors to Civil Rights Litigants, 5 U. Pa. J. Const. L. 537, 539 (2002) <http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1683&context=faculty_scholarship>
  68. ^ Mark Bennett, From the "No Spittin’, No Cussin’ and No Summary Judgment" Days of Employment Discrimination Litigation to the "Defendant’s Summary Judgment Affirmed Without Comment" Days: One Judge’s Four-Decade Perspective, 57 N.Y.L. Sch. L. Rev. 685, 686 (2012–2013), SSRN version at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2492084.
  69. ^ 551 U.S. 89, 89 (2007) (per curiam) (the Supreme Court reads judges from both the Tenth Circuit Court of Appeals and the federal District of Colorado the riot act for slothful disposition of a pro se plaintiff's complaint: "The holding departs in so stark a manner from the pleading standard mandated by the Federal Rules of Civil Procedure that we grant review." at http://www.supremecourt.gov/opinions/06pdf/06-7317.pdf)
  70. ^ Scott Dodson, Pleading Standards After Bell Atlantic Corp. v. Twombly, 93 Va. L. Rev. 135 (2007), SSRN version at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=995592
  71. ^ Erwin Chemerinsky, Closing the Courthouse Doors to Civil Rights Litigants, 5 J. Const. L. 537, 539 (2003).
  72. ^ Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992) (collecting cases).
  73. ^ U.S. Const. Art. I, § 8, cl. 3 (the Commerce Clause); Ogden v. Saunders, 25 U.S. 213 (1827) (police power). Whereas American courts never went so far as to acknowledge that there was a general right to freedom of contract, they have concluded that the right to contract free from unreasonable government interference was protected by the Fifth and Fourteenth Amendment due process clauses. See e.g., David Bernstein, Freedom of Contract (August 19, 2008). George Mason Law & Economics Research Paper No. 08-51. Available at SSRN: http://ssrn.com/abstract=1239749.
  74. ^ Lawrence v. Texas, 539 U.S. 558, 601 (2003) (Scalia, J., dissenting)("This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples.")
  75. ^ Jack M. Balkin, Abortion and Original Meaning, 24 Const. Comment. 291 (2008)
  76. ^ Thomas B. Colby, The Federal Marriage Amendment and the False Promise of Originalism, 108 Colum. L. Rev. 529, 573 (2008)
  77. ^ See e.g., Vienna Convention on the Law of Treaties, preamble, 1155 U.N.T.S. 331, 332 (entered into force Jan. 27, 1980) (pacta sunt servanda—agreements must be honored—governs treaty interpretation); see generally, Jordan Paust, Self-Executing Treaties, 82 Am. J. Int'l L. 760 (1988), SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2446624; current CV at http://www.law.uh.edu/faculty/jpaust/RESUME.pdf, but see David Moore, Do U.S. Courts Discriminate Against Treaties?: Equivalence, Duality, and Treaty Non-Self-Execution, 110 Colum. L. Rev. 2228 (2010), SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1581554 (arguing for a broad form of non-self-execution), current CV at http://www.law2.byu.edu/faculty/profile_fancy.php?id=24 (United States view).
  78. ^ a b Arizona v. United States, No. 11-182, Jun. 25, 2012 (Scalia, J., bench statement at 6); available at http://s3.documentcloud.org/documents/372493/scalia-statement.pdf
  79. ^ Obergefell v. Hodges, No. 14-556, 576 U.S. __ (2015) (Scalia, J., dissenting) (slip op., at 4). For example, Thomas Jefferson proposed that men convicted of sodomy be castrated, Thomas Jefferson, A Bill for Proportioning Crimes and Punishments (1778), reprinted at The Founders' Constitution Vol. 5, Amendment VIII, Doc. 10 (U. Chi. Pr.), http://press-pubs.uchicago.edu/founders/documents/amendVIIIs10.html; Scalia asks, in short, whether the Thomas Jefferson who proposed that law and his contemporaries would have approved of same-sex marriage.
  80. ^ Obergefell v. Hodges, No. 14-556, 576 U.S. __ (2015) (Thomas, J., dissenting) (slip op., at 2; internal citation omitted).
  81. ^ Obergefell v. Hodges, No. 14-556, 576 U.S. __ (2015) (Roberts, C.J., dissenting) (slip op., at 11; internal quotation omitted).
  82. ^ Randy E. Barnett, The Ninth Amendment: It Means What It Says, 85 Tex. L. Rev. 1 (2006), available at http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1850&context=facpub
  83. ^ Barnett, The Ninth Amendment at 2.
  84. ^ See Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty (Princeton U. Pr. 2004), but see e.g., Douglas G. Smith, Does the Constitution Embody a "Presumption of Liberty"?, 2005 Ill. L. Rev. 320.
  85. ^ Hugo Black, News conference, Washington, D.C., reported in N.Y. Times (Feb. 25, 1971) at 38.
  86. ^ A comical example of left-wing judicial activism is Kreimer v. Bureau of Police for the Town of Morristown, 765 F.Supp. 181 (D.N.J. May 22, 1991), rev'd, 958 F.2d 1242 (3d Cir. 1992), (http://law.justia.com/cases/federal/appellate-courts/F2/958 /1242/371694/) where District Judge H. Lee Sarokin—a liberal Jimmy Carter nominee and current Huffington Post blogger, http://www.huffingtonpost.com/judge-h-lee-sarokin/—ruled that a library could not enforce a law preventing homeless men from using it as a place to sleep. Needless to say, his decision was reversed on appeal in a unanimous decision.
  87. ^ Clint Bolick, David's Hammer: The Case for an Activist Judiciary 20 (Cato Institute, 2007); see e.g., Greg Abbott, Democratic Demagoguery: The dishonest attack on Priscilla Owen, National Review Online, May 13, 2005, at http://www.nationalreview.com/article/214441/democratic-demagoguery-greg-abbott (conservatives accusing liberals of it).
  88. ^ See e.g., Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped The Meaning of the Constitution 342 (2009) (assessment of works by Schlafly, Levin, and Robertson, and other conservative voices excoriating the judiciary); Dahlia Lithwick, The Limbaugh Code, Slate, Apr. 1, 2005, at http://www.slate.com/articles/arts/culturebox/2005/04/the_limbaugh_code.html (assessment of Levin). See Colleen Walsh, Phyllis Schlafly speaks out on judicial activism, Harvard Gazette (Oct. 18, 2007), at http://news.harvard.edu/gazette/story/2007/10/phyllis-schlafly-speaks-out-on-judicial-activism/; Mark R. Levin, Men in Black: How the Supreme Court Is Destroying America 17 (2006)("When the judiciary utilizes outcome-determinative reasoning, rather than adhering to the Constitution, the result can be catastrophic."); Pat Robertson, Courting Disaster (2004) for representative original statements
  89. ^ Jeffrey K. Hadden and Charles E. Swann, Prime Time Preachers: The Rising Power of Televangelism 86 (1981) (e-text version available at http://web.archive.org/web/20050314085650/http://etext.lib.virginia.edu/etcbin/toccer-new2?id=HadPrim.sgm&images=images/modeng&data=/texts/english/modeng/parsed&tag=public&part=all
  90. ^ Jack L. Landau, The Myth of Judicial Activism, Ore. St. Bar Bulletin (Jul. 2010), at http://www.osbar.org/publications/bulletin/10jul/activism.html
  91. ^ E.g., Thomas E. Mann, Citizens United vs. Federal Election Commission is an Egregious Exercise of Judicial Activism, Brookings, Jan. 26, 2010, at http://www.brookings.edu/research/opinions/2010/01/26-judicial-activism-mann.
  92. ^ E.g., Gerry Hebert, A Radical Act of Judicial Activism, Moyers & Company, Jun. 26, 2013, at http://billmoyers.com/groupthink/voting-rights-act/a-radical-act-of-judicial-activism/.
  93. ^ E.g., Geoffrey R. Stone, Selective Judicial Activism, 89 Tex. L. Rev. 1423 (2011), PDF available for download at http://chicagounbound.uchicago.edu/journal_articles/3756/
  94. ^ "In the long course of the legislative process, Congress 'amassed a sizable record.' ... Extensive '[e]vidence of continued discrimination,' Congress concluded, 'clearly show[ed] the continued need for Federal oversight' in covered jurisdictions. ... Based on these findings, Congress reauthorized preclearance [re: Section V of the Voting Rights Act] for another 25 years. ... Until today, in considering the constitutionality of the VRA, the Court has accorded Congress the full measure of respect its judgments in this domain should garner." Shelby County v. Holder, 570 U.S. ___ (2013), 133 S. Ct. 2612, 2635-38 (2013) (Ginsburg, J., dissenting).
  95. ^ Frank H. Easterbrook, Do Liberals and Conservatives Differ in Judicial Activism?, 73 U. Colo. L. Rev. 1401, 1401 (2002), at http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2135&context=journal_articles.
  96. ^ Clint Bolick, David's Hammer: The Case for an Activist Judiciary 19 (Cato Institute, 2007) (emphasis in original).
  97. ^ See https://www.govtrack.us/congress/committees/SSJU/25# for an unofficial listing of the Subcommittee's business.
  98. ^ video at Sen. Ted Cruz Gives Opening Statement at SCOTUS Activism Hearing, U.S. Senator for Texas Ted Cruz (official Senate website), Jul. 23, 2015 at http://www.cruz.senate.gov/?p=video&id=2400
  99. ^ The odious Dred Scott v. Sandford (60 U.S. 393 (1857)) decision held that Negroes could not be citizens (a view with support in the Constitution as it then stood), and did not have standing to sue in federal court; accordingly, the Court had no jurisdiction to rule that provisions of the Missouri Compromise declaring it to be free territory were beyond Congress's power to enact, or whether Scott's owner's property rights were superior to his liberty interest (as ably recounted in the relevant Wikipedia entry). Lochner v. New York, 198 U.S. 45 (1905), involved a State's authority under its own Commerce Clause to impair the individual's liberty to enter into any contractual arrangement s/he chose, and a credible libertarian-based argument could be made that it was not an activist decision. E.g., Damon Root, Ted Cruz Attacks SCOTUS for 'Judicial Activism,' Gets the Facts Wrong About Major SCOTUS Case, Hit and Run (blog; Reason magazine), Jul. 23, 2015, at http://reason.com/blog/2015/07/23/ted-cruz-attacks-scotus-for-judicial-act. And regardless of what one thinks of Roe v. Wade, 410 U.S. 113 (1973), courts do not invent rights but rather, merely recognize them, a point that Princeton student Ted Cruz demonstrated a fine understanding of in his senior thesis, "Clipping the Wings of Angels," available at https://s3.amazonaws.com/s3.documentcloud.org/documents/480888/cruz-thesis.pdf. In short, the "off-the-charts brilliant," Marc Fisher, Principled or Know-It-All?, Wash. Post, Mar. 24, 2015, at http://www.washingtonpost.com/sf/national/2015/03/24/ted-cruz-principled-or-smug-know-it-all/ Cruz knows better.
  100. ^ video at Sen. Ted Cruz Gives Opening Statement at SCOTUS Activism Hearing, U.S. Senator for Texas Ted Cruz (official Senate website), Jul. 23, 2015 at http://www.cruz.senate.gov/?p=video&id=2400. In his thesis, Cruz avers that individuals have rights retained by virtue of the Tenth Amendment, and governments have a limited ability to invade them. As the right to abort a fetus is arguably one of those unenumerated rights, and the State must show that it has the power to invade that right, it is (under student Ted Cruz's formulation) presumptively protected from invasion by the majority.
  101. ^ Specifically, she stated: "Senator Grassley, all I can say about that paper is that it’s dangerous to write papers about the law before you’ve spent a day in law school." Nomination of Elena Kagan to be Associate Justice of the United States Supreme Court, S. Cmte. On the Judiciary, Jun. 29, 2010 (statement of Elena Kagan), at 53, unofficial transcript at http://www.washingtonpost.com/wp-srv/politics/documents/KAGANHEARINGSDAY2.pdf. She wrote, in pertinent part, that "U.S. Supreme Court Justices live in the knowledge that they have the authority either to command or to block great social, political, and economic change. At times, the temptation to wield this power becomes irresistible. The Justices, at such times, will attempt to steer the law in order to achieve certain ends and advance certain values. In following this path, the Justices are likely to forget that they are judges and that their Court is a court. Their concentration on end results leads them to neglect legal means...." Elena Kagan, The Development and Erosion of the American Exclusionary Rule: A Study in Judicial Method 6 (unpublished Master’s thesis; Apr. 20, 1983), available at http://online.wsj.com/public/resources/documents/kagan1983thesis.pdf.
  102. ^ official bio at https://www.isc.idaho.gov/main/eismann. As Idaho's judicial elections are nonpartisan, http://ballotpedia.org/Idaho_judicial_elections, Justice Eismann's political leanings are unknown.
  103. ^ Nield v. Pocatello Health Services, Inc., No. 38823-2011 (Ida. 2014) (slip op., at 63) (Eismann, J., dissenting). Concurrences could fill a Brandeis brief.
  104. ^ Riggs v. West Virginia University Hospitals, Inc., 656 S.E.2d 91, 102 (W.Va. 2007) (Starcher, J., dissenting)
  105. ^ Elena Kagan, Richard Posner, the Judge, 120 Harv. L. Rev. 1121, 1121 (2007)
  106. ^ Richard A. Posner, How Judges Think 144, 350 (Harv. U. Pr. 2008). A seriatim list of concurrences would fill a Brandeis brief. See e.g., Monroe Freedman, Speech (to Seventh Annual Judicial Conference of the U.S. Court of Appeals for the Federal Circuit) (May 24, 1989), reprinted in 128 F.R.D. 409, 439; Maura D. Corrigan (then-Chief Justice, Michigan Supreme Court) and J. Michael Thomas, "Dice-Loading" Rules of Statutory Interpretation, 57 N.Y.U. Ann. Survey of Amer. Law 231 (2003), Patricia M. Wald, The Rhetoric Of Results and the Results of Rhetoric: Judicial Writings, 62 U. Chi. L. Rev. 1371, 1374 (1995) (Wald is a former Chief Justice of the D.C. Circuit).
  107. ^ current bio at https://www.law.berkeley.edu/php-programs/faculty/facultyProfile.php?facID=105
  108. ^ Martin Shapiro, Judges as Liars, 17 Harv. J.L. & Pub. Pol’y 155, 155 (1994).
  109. ^ United States v. Windsor, 570 U.S. ___, 133 S.Ct. 2675, 2709 (2013) (Scalia, J., dissenting).
  110. ^ King v. Burwell, No. 14-114, 576 U.S. ____ (2015) (Scalia, J., dissenting) (slip op., at 8).
  111. ^ Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 981 (1992) (Scalia, J., dissenting).
  112. ^ Board of County Comm’rs. v. Umbehr, 518 U.S. 668, 711 (1996) (Scalia, J., dissenting).
  113. ^ Obergefell v. Hodges, No. 14-556, 576 U.S. __ (2015) (Scalia, J., dissenting) (slip op., at 2).
  114. ^ If Scalia opposes the outcome, the Court is "a select, patrician, highly unrepresentative panel of nine" that has no business overriding the will of the voters, Obergefell, (Scalia, J., dissenting) (slip op., at 8). but when legislators overwhelmingly extend laws he despises (e.g., the Voting Rights Act), he complains that "it is very difficult to get [rid of those rules] through the normal political processes" and accordingly, that same "select, patrician, highly unrepresentative panel of nine" suddenly becomes "the Court," which has to step in to save the day. Shelby County v. Holder, No. 12-96, 570 U.S. ___, 133 S.Ct. 2612 (2013) (Tr. of Oral Argument, at 47).
  115. ^ Frederick P. Lewis, The context of judicial activism: the endurance of the Warren Court legacy in a conservative age, Rowman & Littlefield: 1999, ISBN 0-8476-8992-1
  116. ^ Matt Sedensky, "Justice questions way court nominees are grilled," Associated Press, May 14, 2010, accessed May 14, 2010
  117. ^ John Paul Stevens, "Two Questions About Justice," 2003 Ill. L. Rev. 821, 824 (historical research); Article III indicates that a citizen may sue the State that he resides in in the Supreme Court, U.S. Const. art. III, § 2, cl. 1, and by its terms, the Eleventh Amendment does not extinguish that right.
  118. ^ Antonin Scalia, Historical Anomalies in Administrative Law, Y.B. Supreme Court Hist. Soc’y. 103, 104 (1985) (emphasis in original). King John I acknowledged liability in respondeat superior for the wrongful acts of his courtiers, Magna Carta, c. 61 (1215), and thereafter, the King invariably waived immunity where justice required. James E. Pfander, Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government, 91 Nw. U.L. Rev. 899, 906-925 (Spr. 1997); see generally, Erwin Chemerinsky, Against Sovereign Immunity, 53 Stan. L. Rev. 1201 (2001).
  119. ^ Evans v. Board of County Com'rs, 482 P.2d 968, 972 (Colo. 1971) (collecting cases; Colorado was the 18th state to do so)
  120. ^ Jacobs v. United States, 290 U.S. 13, 16 (1933) (Fifth Amendment is implicit waiver of sovereign immunity).
  121. ^ Chisholm v. Georgia, 2 U.S. 419, 452 (1793) (opinion of Blair, J.).
  122. ^ 4 E. Gibbon, The History of the Decline and Fall of the Roman Empire 153 (6th Am. Ed. 1830) (ca. 1780)
  123. ^ See generally, Federalist No. 47.
  124. ^ Montesquieu, The Spirit of Laws XI ch. 4 (T. Nugent trans., Bell & Sons, 1914) (1748).
  125. ^ The concept of separation of powers ("trias politica") is generally attributed to Montesquieu, see generally, Montesquieu, The Spirit of Laws (T. Nugent trans., Bell & Sons, 1914) (1748), but its roots run deep. Claude de Seyssel advocated a mixed monarchy as early as 1500, in which the king's power was limited by the rule of law, an independent judiciary, and a series of councils. James M. Blythe, Ideal Government and the Mixed Constitution in the Middle Ages 268 (Princeton U. Pr. 1992). On the Continent, Niccolò Machiavelli and John Calvin were among many 16th century theorists advocating mixed government. Corinne Weston, English Constitutional Theory and the House of Lords 1556-1832 8 (Routledge, 2d ed. 2010). John Locke advocated a separation of powers between along more functional lines (legislative and executive branches), although he did not perceive a need for an independent judiciary—an innovation incorporated into British law in Act of Settlement 1701. John Locke, Second Treatise on Civil Government §§ 143-44, 150, 159 (1689), available in snippet form at http://press-pubs.uchicago.edu/founders/documents/v1ch10s3.html, and in its entirety at http://www.constitution.org/jl/2ndtreat.htm. And while Hume and Blackstone were advocates of a nominal parliamentary supremacy (citation to come), members of that body were accountable to the people via periodic election(more to come)
  126. ^ James Madison, A Memorial and Remonstrance (address to the General Assembly of the Commonwealth Of Virginia), Jun. 20, 1785), as reprinted in 2 J. Madison, The Writings of James Madison (1783-1787) at 122-23
  127. ^ Fabius, Letter to Editor, Delaware Gazette (1788), reprinted in, John Dickinson, The Letters of Fabius, in 1788, on the Federal Constitution; and in 1797 on the Present Situation of Public Affairs 32 (1797).
  128. ^ 2 Farrand, The Records of the Federal Convention of 1787 587 (1909) (statement of Elbridge Gerry (MA)); they saw it as a "security against corruption," as "it would be necessary to corrupt both court and jury" to subvert justice. The Federalist No. 83 (Alexander Hamilton). There is no contrary authority.
  129. ^ Thomas Jefferson, Notes on the State of Virginia 252 (Query 13) (1783)
  130. ^ Heiner v. Donnan, 285 U.S. 312, 331 (1932).
  131. ^ current bio at http://www.stjohns.edu/academics/bio/howard-abadinsky
  132. ^ Howard Abadinsky, Law, Courts, and Justice in America 169 (7th ed. 2014.)
  133. ^ Suzanna Sherry, A Summary of Why We Need More Judicial Activism, 16 Green Bag 2d 449, 449 (Summer 2013), at http://www.greenbag.org/v16n4/v16n4_micro-symposium_sherry.pdf; extended version available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2213372.
  134. ^ Id. at 450.
  135. ^ Plessy v. Ferguson, 163 U.S. 537 (1896)
  136. ^ Buck v. Bell, 274 U.S. 200 (1927)
  137. ^ Korematsu v. United States, 323 U.S. 214 (1944)
  138. ^ Suzanna Sherry, A Summary of Why We Need More Judicial Activism, 16 Green Bag 2d 449, 451 (Summer 2013) at http://www.greenbag.org/v16n4/v16n4_micro-symposium_sherry.pdf
  139. ^ 517 U.S. 44 (1996)
  140. ^ bio at http://www.uchastings.edu/academics/faculty/facultybios/dodson/index.php.
  141. ^ a b Scott Dodson, Parsing Judicial Activism, 16 Green Bag 2d 457, 458 (Summer 2013), at http://www.greenbag.org/v16n4/v16n4_micro-symposium_sherry.pdf.
  142. ^ Robert H. Jackson, The Supreme Court in the American System of Government 79 (Harv. U. Pr. 1955).
  143. ^ Suzanna Sherry, Why We Need More Judicial Activism 9-10 (Feb. 6, 2013); Vanderbilt Public Law Research Paper No. 13-3. Available at SSRN: http://ssrn.com/abstract=2213372
  144. ^ Antonin Scalia, God’s Justice and Ours, First Things (May, 2002) at 17.
  145. ^ As Madison observes, there is one and only one proper way to interpret the Constitution:

    I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone is it the legitimate Constitution. And if that not be the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.

    James Madison, Writings of James Madison: 1819-1836 191 (G. Hunt ed. 1910); accord, Thomas Jefferson, Letter (to Wilson Nicholas), Sept. 7, 1803 at 2.

  146. ^ Robert H. Bork, The Tempting of America 6 (2009)
  147. ^ a b William H. Rehnquist, The Notion of a Living Constitution, 29 Harv. J.L. & Pub. Pol'y 401, 403 (copy undated), at http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No2_Rehnquist.pdf
  148. ^ Kendall v. United States, 37 U.S. 524, 624 (1838), https://law.resource.org/pub/us/case/reporter/US/74/74.US.113.html
  149. ^ Suzanna Sherry, A Summary of Why We Need More Judicial Activism, 16 Green Bag 2d 449, 452 (Summer 2013), at http://www.greenbag.org/v16n4/v16n4_micro-symposium_sherry.pdf
  150. ^ current bio at https://its.law.nyu.edu/facultyprofiles/profile.cfm?personID=20557
  151. ^ William E. Nelson, Summary Judgment and the Progressive Constitution, 93 Iowa L. Rev. 1653 (2008), SSRN draft available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1117642. In his essay, Nelson alleges that "a loosely knit group of Federalist judges, ranging from John Marshall, the Chief Justice of the United States, through James Kent of New York and Theodore Sedgwick of Massachusetts to Jeremiah Smith of New Hampshire" committed a palace coup, by initiating "a plan to seize control of the law from juries and the lay public and place it in the hands of judges." Id. at 12. Why he does not find this facially unlawful usurpation of authority problematic is altogether unclear.
  152. ^ Romer v. Evans, 517 U.S. 620, 636 (1996) (Scalia, J., dissenting), at https://scholar.google.com/scholar_case?case=17758055891258118781&q=Romer+v.+Evans&hl=en&as_sdt=4003
  153. ^ Diane S. Sykes, "Of a Judiciary Nature": Observations on Chief Justice's First Opinions, 34 Pepp. L. Rev. 1027, 1042 (2007), at http://digitalcommons.pepperdine.edu/plr/vol34/iss4/11
  154. ^ Alex D. Silagi, Note, Selective Minimalism: The Judicial Philosophy of Chief Justice John Roberts, Seton Hall Law Sch. Student Scholarship (2014), at http://scholarship.shu.edu/cgi/viewcontent.cgi?article=1572&context=student_scholarship
  155. ^ Oaths of judicial office are either prescribed by statute, e.g., 28 U.S.C. § 453, unofficial copy at https://www.law.cornell.edu/uscode/text/28/453, or constitutional provision e.g., "I, A.B., having been appointed Chief Justice (or a Judge) of the Supreme Court of India ... do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws." India Const. art. 219 and Third Schedule, IV., unofficial copy at http://www.constitution.org/cons/india/shed03.htm.
  156. ^ Albert V. Dicey, Introduction to the Study of the Law of the Constitution 3-4 (8th ed. 1915) (1982), per Wikiquote, at https://en.wikiquote.org/wiki/A._V._Dicey.
  157. ^ Brown v. Allen, 344 U.S. 443, 542 (1953) (Jackson, J. concurring). And even in that bailiwick, Supreme Court decisions aren't necessarily final. See e.g., Lawrence v. Texas, 539 U.S. 558 (2003) (overturning Bowers v. Hardwick, 478 U.S. 186 (1986)); Roper v. Simmons, 543 U.S. 551 (2005) (overturning Stanford v. Kentucky, 492 U.S. 361 (1989)).
  158. ^ see generally, Brian Z. Tamahana, Beyond the Formalist-Realist Divide: The Role of Politics in Judging 6 (Princeton U. Pr. 2010) (in re: "balanced realism").
  159. ^ Vincent Martin Bonventre, "Judicial activism, judges' speech, and merit selection: conventional wisdom and nonsense," Albany Law Review, Summer 2005, Judicial activism, judges' speech, and merit selection: conventional wisdom and nonsense Albany Law Review, 2005
  160. ^ Roe v. Wade a classic example of judicial activism The Daily Campus, September 12, 2008
  161. ^ The real case of judicial activism The Times Herald, June 2, 2009
  162. ^ Mann, Thomas E. (January 26, 2010). "Commentary: Citizens United vs. FEC is an egregious exercise of judicial activism". McClatchy News Service. Retrieved 2010-04-29. 
  163. ^ Stone, Geoffrey R. (2012). "Citizens United and Conservative Judicial Activism" (PDF). University of Illinois Law Review 2012 (2): 485–500. 
  164. ^ "California Officials React To Proposition 8 Ruling". KRCR-TV. August 4, 2010. Retrieved 2010-08-05.  Congressman Wally Herger issued a statement, "This is simply another example of judicial activism and legislating from the bench..."
    Graves, Bill (August 4, 2010). "California court ruling lifts hopes for Oregon gay marriage supporters". The Oregonian. Retrieved 2010-08-05.  Tim Nashif, political director of the Oregon Family Council, "We think it is judicial activism at its worst."
    Donovan, Charles A (August 4, 2010). "Prop. 8 ruling an act of extreme judicial activism". Orange County Register. Retrieved 2010-08-05.  Charles A. Donovan of the Heritage Foundation, "Today's decision by a federal district judge in San Francisco striking down state constitutional protections for marriage and inventing a spurious federal constitutional right to same-sex marriage is an example of extreme judicial activism."
  165. ^ Jon Boone (June 19, 2012). "Pakistan's prime minister Yousuf Raza Gilani disqualified by supreme court". The Guardian (London). Retrieved 2013-12-21. 
  166. ^ Harris, Gardiner (December 11, 2013). "India's Supreme Court Restores an 1861 Law Banning Gay Sex". The New York Times. 
  167. ^ a b http://www.kankyo.metro.tokyo.jp/policy_others/attachement/Delhi-note%20on%20change%20over.doc
  168. ^ "Supreme Court of India Cause List". Causelists.nic.in. Retrieved 2013-12-21. 
  169. ^ a b "The Constitution Of India". Lawmin.nic.in. Retrieved 2013-12-21. 
  170. ^ Satbir Singh. "Where did the revolution go? The Supreme Court of India & Socio-economic rights since the end of Emergency Rule". academia.edu. 
  171. ^ Neha Lalchandani, TNN (2012-11-03). "Delhi enveloped in smog, back to pre-CNG levels". The Times Of India. Retrieved 2013-12-21. 
  172. ^ "Beijing like Delhi, goes the CNG way!! - Investment News and Commentary from Emerging Markets in Asia". 2point6billion.com. 2007-08-27. Retrieved 2013-12-21. 
  173. ^ http://www.tau.ac.il/law/barakerez/artmarch2010/38.pdf
  174. ^ "The Tal Law: Judicial Activism at its Height". idi.org.il. 
  175. ^ http://ccc.uchicago.edu/docs/bendor.pdf
  176. ^ "פסקים - איחזור של פסקי דין". פסקים. 
  177. ^ Bush v. Gore, 531 U.S. 98, 129 (2000) (Stevens, J., dissenting),
  178. ^ See e.g., Palm Beach County Canvassing Board v. Harris, 772 So.2d 1220 (Fla. 2000); Gore v. Harris, 772 So.2d 1243 (Fla. 2000); Bush v. Gore, 531 U.S. 98 (2000) (the outcome in each case was a function of which Party put the majority of judges onto that bench); New Jersey Democratic Party, Inc. v. Samson, No. A-24 Sept. Term 2002 (N.J. 2002) (Democrat-laden Court allowed Democrats to replace scandal-plagued incumbent Sen. Robert Torricelli on the ballot with then former-Sen. Frank Lautenberg); People ex rel. Salazar v. Davidson, 79 P.3d 1221 (Colo. 2003) (Democrat-laden Court struck down Republican legislative redistricting plan).
  179. ^ The paradigmatic example is the courts' treatment of Obamacare, as illustrated clearly by King v. Burwell, No. 14-114, 576 U.S. ____ (2015). At the appellate level, a D.C. Circuit panel of two Republican appointees and one Clinton appointee concluded along party lines that the federal exchange was not a "State exchange"--a finding that would have scuttled Obamacare. Halbig v. Burwell, 758 F.3d 390 (D.C. Cir. 2014). Quite literally hours later, a Fourth Circuit panel comprised entirely of Democratic appointees found unanimously that it was. King v. Burwell, 759 F.3d 358 (4th Cir. 2014). The decision by Chief Justice Roberts to side with the majority in both Obamacare decisions may well echo that of his namesake's infamous "switch in time that saved nine."
  180. ^ Silveira v. Lockyer, 328 F.3d 567, 568 (9th Cir. 2003) (Kozinski, J., dissenting from den. of reh. en banc; citations omitted)
  181. ^ United States v. Callender, 25 F.Cas. 239, 257 (D.Va. 1800) (Chase, J., riding circuit) (In 1789, juries were final arbiters of questions of both fact and law. See e.g., Georgia v. Brailsford, 3 U.S. 1, 4 (1793) (jury instructions of Jay, C.J.). This was seen as a "security against corruption," as "it would be necessary to corrupt both court and jury" to subvert justice. The Federalist No. 83 (Alexander Hamilton).
  182. ^ Hans v. Louisiana, 134 U.S. 1 (1890); Alden v. Maine, 527 U.S. 706, 715 (1999)., see John Paul Stevens, "Two Questions About Justice," 2003 Ill. L. Rev. 821 (analysis of the evidence surrounding its enactment, calling Alden into question).
  183. ^ As Justice Scalia wrote, "[a]t the time of Marbury v. Madison there was no doctrine of domestic sovereign immunity, as there never had been in English law." Antonin Scalia, Historical Anomalies in Administrative Law, Y.B. Supreme Court Hist. Soc’y. 103, 104 (1985) (emphasis in original). Scalia went on to observe that the rule was "unthinkingly" applied (in Cohens v. Virginia, 19 U.S. 264, 411-12 (1821)), and particularly absurd when invoked in actions lying in mandamus or prohibition. Id.
  184. ^ Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (the International Covenant on Civil and Political Rights)
  185. ^ Pierson v. Ray, 386 U.S. 547 (1967)
  186. ^ The term has been in use for at least a century. See e.g., Horace A. Davis, The Judicial Veto (1914)
  187. ^ Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Before the S. Comm. on the Judiciary, 109th Cong. 180 (2005) (statement of Judge John Roberts). Specifically, the object of constitutional interpretation is to give effect to the intent of the Framers, Lake County v. Rollins, 130 U.S. 662, 670 (1889), and the Framers are presumed to have said what they meant and meant what they said. Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992) (opinion of Thomas, J.; collecting cases). Therefore, it is the office of a judge to "always to make such construction [of a law] as shall suppress the mischief, advance the remedy, and to suppress subtle invention and evasions for continuance of the mischief … according to the true intent of the makers of the act." Heydon's Case [1584] 76 Eng.Rep. 637 (Exch.), and the case must be "a strong one indeed, which would justify a court in departing from the plain meaning of words ... in search of an intention which the words themselves did not suggest." United States v. Wiltberger, 18 U.S. 76, 96 (1820).


  • Merriam-Webster's Dictionary of Law (1996), Merriam-Webster. ISBN 0-87779-604-1
  • Bryan A. Garner (1999). Black's Law Dictionary, 8th Edition. West Group. ISBN 0-314-15199-0. 

Further reading[edit]

Legal books[edit]

  • Paul O. Carrese, 2003. The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism (Chicago: University of Chicago Press).
  • Duncan Kennedy, 1998. A Critique of Adjudication (Cambridge, MA: Harvard University Press).
  • Carrol D. Kilgore, 1977. Judicial Tyranny: An Inquiry into the Integrity of the Federal Judiciary (Thomas Nelson). ISBN 978-0-8407-4060-1
  • 105th Cong., I @ Sess. I, 1997. Judicial Activism: Defining the Problem and its Impact: Testimony before the Subcommittee on the Constitution, Federalism & Property Rights (U.S. G.P.O., Supt. of Docs., Congressional Sales Office Publishers), 205pp. ISBN 0-16-055917-0
  • Sterling Harwood, 1996. Judicial Activism: A Restrained Defense (London: Austin & Winfield Publishers), 167pp. ISBN 1-880921-68-5.
  • Christopher Wolfe, 1997. Judicial Activism, 2nd ed. (Totowa, NJ: Rowman & Littfield Publishers, Inc.).
  • Kenneth M. Holland, editor, 1991. Judicial Activism in Comparative Perspective (Palgrave Macmillan).
  • Ronald Dworkin, 1988. Law's Empire (Cambridge, MA: Harvard University Press).
  • Alexander M. Bickel, 1986. The Least Dangerous Branch 2nd ed. (New Haven, CT: Yale University Press).
  • Arthur Selwyn Miller, 1982. Toward Increased Judicial Activism (Greenwood Press).
  • Ronald Dworkin, 1977. Taking Rights Seriously (Cambridge, MA: Harvard University Press).
  • Lino A. Graglia, 1976. Disaster by Decree (Ithaca, NY: Cornell University Press).
  • Michael Rebell and Arthur R. Block, 1982. Educational Policy Making and the Courts: An Empirical Study of Judicial Activism (Chicago: University of Chicago Press).
  • H. L. A. Hart, 1961. The Concept of Law (Oxford: Oxford University Press).

Popular books[edit]