Talk:Judicial activism

Response to Dustin

The question of what is and is not judicial activism is a bone of contention that has to be addressed. Our Founding Fathers and their English predecessors had a fairly precise concept of what it was and was not, which is reflected in the Definitions page. Obergefell was a hotly-contested case which highlights the difference between an activist decision and one where your (not in a personal sense, but to the speaker claiming judicial activism) preferred interpretation of the Constitution was not followed. Showing this, with appropriate references to recognized experts, adds meat to the proverbial bones.

One of the problems I am running into is that my computer keeps crashing, and what you are seeing is a work-in-progress. Sitting judges have said so much on this topic that, except where I have paraphrased them for sake of brevity, not a single word is my own. I don't have a dog in the Roe or Obergefell hunts, but being able to present a clear working definition of judicial activism for the public at large is of great concern to me. I have expert-level knowledge of the topic, but have a lot to learn about how best to write for this forum. Help me out with this end of the project, and we will all benefit.

As for this comment: ("A third is where judges take liberties with the law, facts, and/or precedent, which—while remarkably commonplace—is never construed as permissible."), the evidence reads like a Brandeis brief.

Objectively speaking, Roe v. Wade is not an activist decision, for the reasons stated. Perhaps the best solution is to remove it from the list of activist decisions. (I have to remember to sign these things!)

— Preceding unsigned comment added by Bouldergeist (talk Bouldergeist (talk) 19:23, 12 August 2015 (UTC)Bouldergeist contribs) 19:19, 12 August 2015 (UTC) 

I have cut out what I thought you might find to be objectionable as an emergency measure, as I want you to be happy with the product. I left the Scalia discussion to illustrate that in the real world, what is or is not "activism" depends a lot on the outcome that you want, and the position of those who invoke it is rarely a consistent one. I await and welcome your direction on this point. Bouldergeist (talk) 19:36, 12 August 2015 (UTC)Bouldergeist

While the "Rhetorical Application" section still needs a lot of work—it is amazing how many charges of judicial activism are leveled—I've tried hard to outline essential aspects of the controversy, and add non-American perspectives. Every modern opinion is that of a judge or law professor, and I have made a special effort to ensure that both sides of each aspect have been given adequate coverage. The "Debate" section can be strengthened as well; Justice Stevens has stated his support for judicial activism, and there is academic support for the practice. I am still waiting on any suggestions the moderators might have to strengthen the final product. Bouldergeist (talk) 22:01, 16 August 2015 (UTC)Bouldergeist

Message from Bouldergeist

I'm working at polishing the Judicial Activism page. If I'm doing it right, the entry should be encyclopedic (comprehensive) and informative. And as I like to say wrt my legal briefs, "if I've done it right, not a single word is my own." What the Framers thought is often best expressed in their own words (as they really were quite erudite), and James Madison and Alexander Hamilton are as much experts on constitutional design as any modern scholars are. Once everyone is more-or-less happy with the entry itself, the hard work of cleaning up the endnotes (providing links where available, as documenting phrases from snippets in Google Books can be problematic) and curing disambiguation issues begins.

I've never really thought of quoting sources like Blackstone and Locke as "original research," as Blackstone was more of an authority than an Alan Dershowitz will ever be. Blackstone was cited over 10,000 times in reported colonial cases, and the United States Reports are replete with citations to The Federalist. You won't see a lot of scholarly work on the debate over judicial activism during the 18th century because there really wasn't one, but an understanding of the American Framers' view of the proper role of the judiciary is essential to grasping what the modern debate is all about.

As for my personal biases on the topic, I am a Scalian originalist, who maintains that the Constitution is a contract (more specifically, a suzerainty agreement), and must be interpreted as though it was a contract. Scalia is an expert in his own right, and like Holmes and Story, can be cited as one. If I am hard on Scalia, it is to compensate for this known bias.

An encyclopedia entry should be as neutral as possible, and I can only do so much in trying to be aware of and compensate for my own biases. I am counting on editors and readers to help me in that regard. I not only invite you but beseech you to hold me to the highest of standards.

Work with me, and I'll do my best to make this an A-class entry. As it stood, the old version was next to useless.Bouldergeist (talk) 13:16, 19 August 2015 (UTC)Bouldergeist

"Scalia is an expert in his own right, and like Holmes and Story, can be cited as one." Scalia seems to be somewhat controversial on this subject and Originalism has its detractors. So any statement by Scalia should probably have an in-text mention of who is making what statement. But I agree that he is too notable to ignore. Dimadick (talk) 06:18, 20 August 2015 (UTC)

What's Left and What To Do About It

I have tried to save as much of what has been contributed by others as possible, working it into the body of the revised entry (at least in concept). While I know this topic cold, a decent respect for the insights of others is what makes Wikipedia valuable.

One of the statements that motivated me to take this task on was the odd remark that "Some proponents of a stronger judiciary argue that the judiciary helps provide checks and balances and should grant itself an expanded role to counterbalance the effects of transient majoritarianism." That statement -- if not necessarily the sentiment -- was so wrong on so many levels that it is hard to even contemplate. One is left to wonder where the judiciary could ever find authority to grant itself powers in the United States Constitution, and the conclusion is inconsistent with my reading of the cited portion of Democracy and Distrust. The (in?)famous Footnote Four in Carolene Products reflects the view that, in cases where government action does not infringe upon protected individual rights, judicial deference to Congressional decisions should be almost plenary, but where it does, and where a majority may use its power to impose its will on discrete and insular minorities, judicial inquiry should be "more searching." Professor John Hart Ely's analysis reflects this concept, and more importantly, that the Court does not have to grant itself that role, as that power already exists. Ely cites Federalist 51 for this point [p. 80], in demonstration of this point. For that reason, I have removed it from the current edition, but saved it here for easy access, as Ely's signature work (which, in general, doesn't appear that amenable to it) deserves mention in consideration of the modern debate over activism:

Some proponents of a stronger judiciary argue that the judiciary helps provide checks and balances and should grant itself an expanded role to counterbalance the effects of transient majoritarianism, i.e., there should be an increase in the powers of a branch of government which is not directly subject to the electorate, so that the majority cannot dominate or oppress any particular minority through its elective powers. Other scholars have proposed that judicial activism is most appropriate when it restrains the tendency of democratic majorities to act out of passion and prejudice rather than after reasoned deliberation.

I also went hunting for ways to expand and document Professor Zoldan's observation. My thought is that, in the light of Professor Sherry's observations, his are cumulative, and belong in a parallel cite.

I was unable to verify the Tamahana quote, but the professor's work added value to the discussion. I point-cited to what I thought was directly on-point.

The last paragraph was completely unsupported by citation:

Moreover, they argue that the judiciary strikes down both elected and unelected official action, in some instances acts of legislative bodies reflecting the view the transient majority may have had at the moment of passage and not necessarily the view the same legislative body may have at the time the legislation is struck down. Also, the judges that are appointed are usually appointed by previously elected executive officials so that their philosophy should reflect that of those who nominated them, that an independent judiciary is a great asset to civil society since special interests are unable to dictate their version of constitutional interpretation with threat of stopping political donations.

These statements may have intrinsic merit, but without appropriate scholarly support, they probably don't belong in the article. I have saved the paragraph in question for easy access, and will go hunting for the proper level of scholarly support.

As for the United States entry, a quick paragraph appraising the allegedly activist decisions in light of the Tushnet/Marshall standards is in order, and I will attend to that task shortly. As the more immediate issue is cleaning up instances of disambiguation and providing links to source material, that will take precedence for now. Again, I welcome any input from readers and moderators. Bouldergeist (talk) 16:33, 19 August 2015 (UTC)Bouldergeist

While I appreciate your efforts to improve a problematic article, I think there are sourcing problems with much of the text and violates a section of Wikipedia:No original research: "Synthesis of published material": Do not combine material from multiple sources to reach or imply a conclusion not explicitly stated by any of the sources. Similarly, do not combine different parts of one source to reach or imply a conclusion not explicitly stated by the source. If one reliable source says A, and another reliable source says B, do not join A and B together to imply a conclusion C that is not mentioned by either of the sources. This would be a synthesis of published material to imply a new conclusion, which is original research.[9] "A and B, therefore C" is acceptable only if a reliable source has published the same argument in relation to the topic of the article. If a single source says "A" in one context, and "B" in another, without connecting them, and does not provide an argument of "therefore C", then "therefore C" cannot be used in any article."

Specific sections that I think pose problems:

• There is as an unsourced speculation on what Thomas Jefferson would have to say about a 2015 interpretation of the United States Constitution allowing same-sex marriages. This is problematic in two ways. We can not use such counterfactual speculations about what a long-dead individual would have though of his/her distant future. And I doubt Jefferson has relevance in a section discussing a case decided on an interpetation of the Fourteenth Amendment to the United States Constitution (1868) which was created 42 years following his death.
• The sources posted do not confirm that anyone argued that Obergefell v. Hodges represents a case of judicial activism, nor in fact are the arguments that it was legitimate decision based on a source. I hope this is not original research.
• "in the world of partisan politics, the term is often a vehicle for demagoguery." While I find the statement to be true, are there sources for the conclusion?
• "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". This is sourced to their texts on the subject, but there is no source about the conclusion.
• "on both sides of the aisle, the outrage is notoriously selective." Partisans are only outraged when the court decisions go against what they believe. I get that, but is there a reputable source (preferably a study) which can confirm that "conservatives" and "liberals" are so remarkably similar in thinking and making accusations?
• The section about Ted Kruz and Elena Kagan contradicting themselves is sourced only to their texts on the matter. No third-party source pointing the disrepancy in thinking.
• "Even among the most brilliant sitting judges, charges of judicial activism are usually outcome-driven. " Swiping statement, but who is actually evaluating their brilliance?
• The source about how "perplexing" and "amusing" the contributions of Antonin Scalia are is Jon Stewart? Not exactly what I would expect to be an expert on the subject.
• The section on Scalia and how his positions on activism are based on where he stands ideologically on any given case is sourced to Scalia himself? Aren't there reliable sources actually discussing his questionable record? By the way, I fail to see what “argle-bargle”and “jiggery-pokery" have to do with the subject at hand. Internet dictionaries indicate that "argle-bargle" is a term for "copious but meaningless talk or writing" and "jiggery-pokery" is a term for "deceitful or dishonest behaviour." Not that popular expressions nowadays I suspect, but whoever said that obscurantism equates to not using modern slang?
• "On both sides of the Pond, the people of the Founding Fathers' generation would undoubtedly be astounded that we are even having this debate at all." This seems to be pure speculation to me, as we do not know what the 18th century would have to comment on the 21st century. I am more concerned however with the use of a "we" in the text. Who are "we", us Wikipedians, Americans, British, 21st-century people? We have a rule against using this term in articles.
• "The thought that anyone—least of all, an unelected and unaccountable official—should possess unchecked power was disfavored by political theorists of the day." I can see the primary source but not a reliable secondary source making the conclusion.
• Is Suzanna Sherry's entire argument on when the courts "screwed up"? Who is making the summary here?
• "unrestricted judicial rule can also leave the individual unprotected". The statement has a cited author but no indication of where to find it.
• "one may fairly question whether the judge-fearing Elbridge Gerry would have embraced a regime where judges were endowed with such discretion". I don't know what one may think, but we really need a source on how Gerry is relevant to this subject.
• "This was recognized, and deemed not applicable the High Court of Singapore in Teo Soh Lung v. Minister for Home Affairs". How exactly is a court in Singapore relevant to judicial activism in India, and what source supports this?
• "touches on diverse and controversial public matters". What source established the diversity and controversial nature of these matters in Israeli law?

I hope I am not being disruptive, but I see these as problems. Dimadick (talk) 09:08, 20 August 2015 (UTC)

Perish the thought! I appreciate and thank you for your input, Dimadick, and will endeavor to "get it right." That's why authors love and appreciate editors. An extra set of eyes is a cure for sloppiness, and that was what I was counting on. But this is a work in progress, and it will take time to "get it right." I want everyone to be happy with the final product.

Professor Sherry's thesis is Sherry's, and it is in the same Green Bag symposium/article, as was Scott D's. I just need to copy over the cites (if I haven't done so already).

Charges of judicial activism in the United States have overwhelming support in the literature, which I have to organize properly to meet Wiki-standards. Everything that I have observed is either supported in the literature or will be excised from the final product.

There is considerable support for Scalia as an activist in the literature, and again, this just needs better targeting. It's the "better than it was, but still not good enough" syndrome.

At this point, I still have to figure out what is going on in India. That was someone else's contribution, and I offer no opinion on it, but there is ample scholarly material on the topic that I will need to digest. Former CJ Bhagwati gave an interview here in the States where he makes the case for activism in India, but it needs proper sourcing. Discussion by scholars is fairly robust, but I still need to get a feel for whose opinion carries the most weight. As for Israel, the legend of Aharon Barak is well-known, but this was one of the more problematic aspects of the article when I got here. I will tackle this after I get the main body of the article right.

Again, I am grateful for your input.Bouldergeist (talk) 16:19, 22 August 2015 (UTC)Bouldergeist

I apologize in advance for not getting back to this sooner. I'll start fixing what needs to be fixed this weekend. Bouldergeist (talk) 20:44, 29 August 2015 (UTC)Bouldergeist

Fixing Obergefell was all I could reasonably get to today. I hope to tackle the Rhetorical Application section tomorrow. Bouldergeist (talk) 22:28, 29 August 2015 (UTC)Bouldergeist

Real life intruded in a major-league way. I apologize to all for my lack of diligence here. Bouldergeist (talk) 03:19, 9 September 2015 (UTC)Bouldergeist

References

(At least) four different meanings to the term "Judicial activism"

1. The willingness of the judiciary to overturn acts of a legislator or previous judicial decisions that are unconstitutional. (opposite of judicial restraint)
2. The various forms of judicial interpretation that go beyond the text or meaning of the law (originalism) and consider things such as what the judge believes the intent of the law was; or to balance the law against other considerations such as governmental interests or popular opinion.
3. The willingness of justices to make broad decisions that cover fundamental principles, rather than narrowly construed decisions that limit the effects of precedent only to those necessary to settle the case before them.
4. The introduction of personal, emotional or political bias into decisions.

The current revision of the article's lede only discusses the last meaning of the term. The body of the article touches on some of the other meanings, but doesn't elaborate. Sparkie82 (t•c) 07:37, 9 December 2016 (UTC)

I tend to agree that a better-rounded definition is in order. For example, judicial activism can refer to a willingness to overturn precedent even when that precedent was uncontroversially incorrect. However, I don't think that we should include #2, because originalism is not the consensus baseline of responsible jurisprudence. Lukacris (talk) 21:47, 14 January 2018 (UTC)

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References

I'm amazed there's no mention of Lord Denning in this article. There ought to be. — Preceding unsigned comment added by 59.154.17.106 (talk) 03:50, 20 January 2017 (UTC)

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Redirect from "Judicial Fiat"?

Currently, "judicial fiat" redirects to this article. This seems, to me, incorrect. Judicial activism is a far broader term and judicial fiat is a narrower form of judicial policymaking that is not necessarily judicial activism and can be distinctively passive. Lukacris (talk) 21:44, 14 January 2018 (UTC)

UK and Judicial Activism in doubt

Am not familiar with Judicial activism in the UK but would like more evidence that scholars agree it's established. I also read article like like this which question whether it's on the rise altogether. ~ Shushugah (talk) 14:33, 23 January 2021 (UTC)

Copyright problem removed

Prior content in this article duplicated one or more previously published sources. The material was copied from: https://fedsoc.org/commentary/publications/hot-topics-judicial-activism https://www.washingtonpost.com/archive/politics/1994/06/10/retired-justice-changes-stand-on-death-penalty/9ccde42b-9de5-46bc-a32a-613ae29d55f3/ https://www.newyorker.com/magazine/2010/05/24/activism-v-restraint https://www.theguardian.com/world/2012/apr/02/barack-obama-unelected-supreme-court?newsfeed=true https://www.abajournal.com/news/article/aba_president_says_obamas_initial_remarks_on_judicial_activism_are_troublin https://www.nesl.edu/blog/detail/a-true-legal-horror-story-the-Laws-leading-to-the-salem-witch-trials. Copied or closely paraphrased material has been rewritten or removed and must not be restored, unless it is duly released under a compatible license. (For more information, please see "using copyrighted works from others" if you are not the copyright holder of this material, or "donating copyrighted materials" if you are.)

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Merger proposal of: Judicial activism in the European Union, Canada and India, into this article

The template at the top of this article currently mentions "deal primarily with the United States and do not represent a worldwide view of the subject." Below that it mentions: "See also: Judicial activism in the European Union, Judicial activism in Canada", and there is also the equally short and source-starved Judicial Activism in India

I suppose it would be best to merge those three articles into this one to resolve problems of all four articles (the lack of a worldwide view of this one, and the lack of content and sourcing which would justify separate articles for the last ones).

I thus propose merging all 3 into this one.

@Emeraude, Rajat9428, Shashwat312, Srin2015, Honi02, Shyamsunder, and Ufk iitk: I am suggesting a merge of the Judicial activism in India article which you have made contributions to Xavdeman (talk) 18:18, 2 July 2022 (UTC) @Omnicog, Vincet, and Rhombus: I am suggesting a merge of the Judicial activism in Canada article which you have made contributions to Xavdeman (talk) 18:18, 2 July 2022 (UTC) @QuotationMan and Binary TSO: I am suggesting a merge of the Judicial activism in the European Union article which you have made contributions to Xavdeman (talk) 18:18, 2 July 2022 (UTC)

Xavdeman (talk) 18:11, 2 July 2022 (UTC)

Yeah merging the India page probably makes sense. There's not much there to begin with, and it has quite a bit of extra information, which is out of date - for example, the tenure of the current Chief justice of India. Shashwat312 (talk) 20:47, 2 July 2022 (UTC)

I confess I have no strong opinion on this. My involvement with the India article was merely a tidying up, grammar and punctuation exercise, though I noted then that the article does not really cover the title. The only relevant phrase is "the judiciary has played a very active role in dispensing justice" which, it seems to me, is a truism that applies to the judiciary in every country and has nothing to do with "judicial activism". As such the article is probably a candidate for deletion rather than merging. Emeraude (talk) 08:45, 3 July 2022 (UTC)

•   Y Merger complete. Joyous! Noise! 03:26, 14 March 2023 (UTC)