Talk:Judicial activism/Archive 1

Archive 1

Archive 2

Lead / intro section

I completely changed the intro - it was a twisted monster written by lawyers. This is a PEOPLE'S ENCYCLOPEDIA. I challenge someone to use this "positive" meaning of judicial activism in a regular non-legalese sentence. Anyone? Anyone? --Omnicog (talk) 01:41, 27 November 2007 (UTC)

Some problems with the previous lead, which after I reverted, has now been maintained (and again reverted): To start off by declaring that JA refers to a substitution of personal views "in place of the law" (etc) is inaccurate and unhelpful because JA may nevertheless exist without this substitution, and the statement is circular as it simply leads us to ask, what is this substitution (and who gets to say that it exists)? We must just say at the outset that JA is about going beyond a certain limit (and in particular, being perceived to go beyond), without regard to particular reasons; these can come later. We also gloss over fairly complex issues on the nature and role of the judiciary in making law, by referring to substituting. Lastly, on a matter of form, can we please do better than to describe anything here as a "bad thing" (regardless of how strongly one may feel that JA is in fact a very Bad Thing!). Obey 16:34, 26 November 2005 (UTC)

(caveat: I don't know much about law, I just have this article on my watchlist) I think many people see JA as purely bad, especially those who come from countries where the term is used in a purely pejorative way. Could this neutrality point be better clarified in the article? Even if its neutrality is obvious to legal academics, there will be less educated who stumble on the article thinking differently. (eg. if JA is ever a good thing, maybe include a short explanation or example of a situation where it's a good thing?) --Interiot 17:44, 26 November 2005 (UTC)

Is murder bad, is indiscriminate violence bad? Judges are charged with very specific duties in the constitution. Whether you believe a particular judge is guilty of JA is up to you, but to claim that there is any redeaming value in JA is an extreme view. If you need to get right down to what is right and what is wrong, I think the only way to do so is to by polling average people to see what their honest reaction is to the term. That is the NPOV that is needed and that is the common usage that should be applied in Wikipedia - not some "balanced" view that there is a good and bad side to it. The argument that it is possibly good stems from people that believe that judges can get "trapped" by the law and may need to go out on a limb and do some "good" by stretching their judicial powers in some bizarre and undefendable way. Whether the results is good or bad is a matter of opinion, a judge however overstepping the bound of their powers is wrong and can lead to some very bad places if it is allowed. Look at some countries with kangaroo courts - show trials in the USSR for example - in which the rule of law is not followed and you will see an end result of judges allowed to make up their own minds without restraints.--24.222.125.238 19:48, 19 June 2006 (UTC)

• My earlier comments would probably have been clearer if I just said the term is an example of loaded language which is often used to express uninformed notions about the function of the judiciary and what it means to "interpret the law", which in turn informs the uncritical presumption that a judge should not or cannot "make law". I'm posting again now as my recent changes were designed to (hopefully) make this more clear. Obey 04:02, 27 January 2006 (UTC)

Seperation of power is laid out in the constitution, it is not controversial. It is very well defined, and one of the fundamental tenet of our nations. Legislatures and make the law, that is their role. The judiciary interprets it, that is its role.

The prior lead/intro section read "Judicial activism describes an act of judicial interpretation that critics consider to take on suspected political reasoning, rather than an evaluation of applicable law. The extent of the activism may be measured by how far the judiciary has substantially changed the original intent of the law handed down by an elected legislative branch, or radically diverged from the conventions contained in case and common law."

The prior lead/intro section on judicial activism carried forth several significant flaws that continually follow this issue. (1) "judicial interpretation" What does it mean to "interpret?" The use of the term "interpret" or "interpretation" is vague and ambiguous. A judges' job is to analyze statutory terms and draw a conclusion, not interpret. (2) suspected political reasoning vs. evaluation of applicable law. The lead/intro section made politics sound like something bad. Law is the end result of politics and political reasoning. The actual problem is a court implementing its own political reasoning rather than implementing Congress' political reasoning as a court is supposed to do. A better way of thinking about this might be "court political reasoning vs. legislature political reasoning." (3) "changed the original intent of the law" What do you mean by "intent"? A law is an end result "action" taken by Congress in the face of two competing political intents (in the United States, usually conservative intent vs. liberal intent). Only one of these two intents succeeds and merges into the end result action (the law). The other political intent fails to obtain a majority of the votes. I may intend to raise my arm slow or intend to raise my arm fast, but the end result of action taken is the action of raising my arm by only one of the two ways. By focusing on intent rather than action, you are one step removed from the conduct that is to be analyzed. By focusing on intent rather than action (or conduct), you can conclude that I slowly raised my arm, even though I in fact raised my arm fast. Moreover, by focusing on intent rather than the end result action, a court is able to resurrect surreptitiously the fail political intent behind the law. I changed the lead/intro section accordingly. Vincet 16:44, 1 July 2006 (UTC)

The word "interpretation" is fairly standard judicial jargon. Look up the wiki defintion for "judicial interpretation" in a previous version. In fact it is key to this concept, because when that is what is being said - that there is an act of FAKE interpretation, they are not interpreting the law in any sense. Politics should NOT enter into a judgement, ideally. Would you like it if a conservative judge looked at a record of liberal websites that some person had visited, and so decided to give him a five year sentence instead of probation? Judges are allowed to have political views, but they should ideally not let them affect their judgements - they should be evenhanded, based on the law. Your critique of intent is difficult for me to follow. I think you are saying that judges can't know the original thinking of the legislator and so it should not take it into account. OK that is a good point. But I think intent in this case means "accepted meaning", i.e. legislators write a law to be understood with the language that hopefully cannot get bent into weird and worderful ways. What activist judges do is take several fanciful steps with it that are impossible for any average thinking person to see the connection between the judgements and the law. So the intent of the legislator - i.e. in some case the legislator who are still in office are saying that that is not what the law was intended to do.--Omnicog 14:38, 4 July 2006 (UTC)

(1) I concur with Omnicog that "interpretation" is quite appropriate in the context. As a matter of fact, when you look up "interpret" in my dictionary, it says "to construe", which it defines as "1 to analyze the construction of (a sentence) 2 to translate 3 to explain; interpret". All of which is what a judge must do in order to apply the law to cases that come before the courts. There are a multitude of laws in which there are a number of vague or very precise terms; many of which require that the courts rule on its meaning as a question of law. I fail to see the dichotomy between analyzing the law and interpreting it. They mean the same thing; the courts are merely saying what the law is, as is their province. (3) Vincent, I agree for the most part with your logic regarding your distinction between "intent" and the law. However, a great many others would disagree. Not all are originalists either. In general, they would maintain that the courts should not interpret the law to such a point, no matter how plausible with respect to the language being used, if it would conflict with or surpass the intentions of the framers or of the Legislature. That is a point of view. As it is also a point of view that intent is irrelevant when the courts are interpreting the law. However, in a wikipedia article there has to be a neutral point of view. In other words, the article cannot judge a single point of view as correct or incorrect; it must state what the different points of view are and let the facts and the arguments speak for themselves. The article attempts to do that by stating the points of view regarding whether the doctrine of original intent or the living constitution is, in fact, JA. The definition of JA which you suggest states that "Judicial activism is the action of a judge that does not implement the legislature's meaning of a language term in a law." That appears to me to incorporate a point of view which considers intent to be irrelevant. It is, therefore, not neutral. I also find "implement" to be an awkward word to use; what is it supposed to mean exactly in the context? --Ben 17:37, 5 July 2006 (UTC)

(2) The Lead / intro section now states that "judicial activism describes an act of judicial interpretation." "The Judicial interpretation link states that judicial interpretation refers to a theory or mode of thought which explains how the judiciary should interpret the law." So what the lead/intro section is saying is that judicial activism describes an act of how the judiciary should interpret the law. The lead/intro section further states "critics consider (the act) to take on suspected political reasoning." The present lead/intro section primary point seems to be in point out conflicting views over judicial activism rather than provide information about judicial activism. A discussion about the conflicting views over judicial activism belongs in a section other than the lead/intro section. Also, in pointing out that conflicting view, the present lead / intro section clearly is biased towards saying judicial activism is acceptable conduct by a judge and anyone who disagrees is a critic who merely believes that the act takes on political reasoning and that critic's belief is without proof or at least without proof necessary for making such an assertion against a judge. The lead/intro as it now stands is not NPOV (see Wikipedia:Neutral point of view).--Vincet 23:51, 6 July 2006 (UTC)

I agree. I have added a tidbit to get the wheels rolling. --Ben 00:32, 7 July 2006 (UTC)

(1) So long as the lead/intro section addresses the conflicting views over judicial activism, I don't see this section being NPOV. Ben, do you see yourself as an originalist?--Vincet 00:52, 7 July 2006 (UTC)

Not particularly a fan of originalism. Although I am familiar with much of their rationale. While my views on JA are dependent on the exact definition, I am generally of the opinion that the use of originalism is a bad form of JA.

(3) Decided to take a different tact by flagging the section as a POV-check-section. --Vincet 15:41, 8 July 2006 (UTC)

Other

I reverted "not to rule as constrained by law" as this is vague and POV. Likewise "and not as they are supposed to do" is certainly POV. The link to judicial constraint does not exist, so it was reverted as well. Finally, the reference to liberal/left-wing judges being judicial activists was removed because this is addressed in the "Criteria for Accusation". In addition, the "higher-tendency" of liberal judges to rule in this way was unsupported by empirical evidence (see "Criteria for Accusation"). Queerudite 03:59, 30 Jan 2005 (UTC)

"a common-sense reading of the law" is ambiguous and subject to a great deal of debate. I replaced this with a section on the "Criteria for Accusation" Me

I think judicial activism means judges changing the law, overturning laws, or introducing legal principles -- in such a way that usurps the role of Congress or state legislatures; or that takes the place of Constitutional Amendments.

I agree. I expanded the definition to include this along with other criteria. Me

Sometimes I agree with the results, like the Miranda Law (oops, not really a law, is it?) intended to prevent cops from sweating out false confessions from innocent suspects. But I think our nation (America) would be stronger if a bill were signed into law -- instead of a Supreme Court ruling establishing it.

My favored approach is: Congress or legislature makes the law, executive branch or governor enforces it, courts decide guilty or innocent.

Could someone finish this article, please? --Uncle Ed 18:18, 22 Jul 2004 (UTC)

There is the point that the laws often contradict each other, or contradict the federal or state constitutions. I suspect a lot of accusations of judicial activism come from cases where there's just such a real or apparent contradiction. Evercat 22:51, 22 Jul 2004 (UTC)

And I believe that many cases of judicial activism come from cases where there was NO SUCH contradiction, but someone simply decideded they didn't LIKE the law any more. Rather than seeking to change the law by passing a new one (majority vote and executive signs it, or 2/3 vote), it's much easier to get a pliant judge to issue a ruling.

The point is not whether this is right or wrong, since the W is not supposed to 'judge' this.

I know, but if you're allowed to state your opinion above then so am I. :-) Evercat 20:55, 23 Jul 2004 (UTC)

My editorial concern is how to define and descrike judicial activism in the article. --Uncle Ed 17:58, 23 Jul 2004 (UTC)

May I (a different voice) interject? After reading the article Common Law I realized from where the Supreme Court would get the notion that they could use "Foreign Conventions" in U.S. rulings. Common Law at it root is uncodified and derives from what is, according to community standards, commonly held to be just . At the inception of the US Supreme Court, it had Common Law as its basis and a new document, The United States Constitution, to interpret. What if not Common Law could the original justices use to make their rulings? And is it therefore not in keeping with Originial Settings and fundamental president for the current Court to acknowledge the broader community in which we live.

Common law is a British term. Usually Case Law is used in the US. Judgements can refine the understanding of existing laws but under no circumstances are they supposed to created new laws. It is not a difficult concept to understand and it is the very basis of a democratic system of government. Only an elected group of people who have are representing the citizens of their country are allowed to create law. That is why it is called the legislative branch. They are the law makers. The judiciary is the law enforcers and interpreters. Any blurring of this line is extremely dangerous and is a sign of corruption in the highest levels.

Internationalism

Currently, everything after the first graf is U.S.-specific. Can someone please add some text relevant to the oher countries mentioned in the intro, or else make it clear that this is an article about U.S. politics? 18.26.0.18 03:06, 19 Feb 2005 (UTC)

Neutrality

Sections stating "fits definition" and "does not fit" are not neutral nor can they be. One cannot give a neutral list of cases which in fact constitute acts of judicial activism. Such is merely a matter of bitterly contested opinion. The term is derogatory in nature and so its applicaton is often resisted by those agreeing with a judicial opinion, either in outcome or reasoning. Those sections should be deleted.

The section on Roper should be deleted for similar reasons. The case does not illustrate "both sides" of the judicial activism debate. It is not as if the majority is defending judicial activism and the minority is attacking it. The majority would most likely shun the term altogether given its political and derrogatory nature. Whether majority engaged in judicial activism is an outsiders view, not appropriate for debate on a W page.RyanKoppelman 13:53, 30 Mar 2005 (UTC)

Then put the other side's case. It should stay because this is a key case that illustrates the problems that critics have with what they call judicial supremacy. 203.213.77.138 03:16, 6 Apr 2005 (UTC)

Perhaps the best definition of judicial activism, as it is often used, is a legal opinion not decided on the basis of strict contstruction of a constitution or statute. But, then the list of cases would be long indeed. Strict construction has not been the predominant view in American jurisprudence for the last couple centuries. The intellectual value of this imprecise political term is limited and its value on W is limited too. The best this article can hope for is some measure of objectivity. -- RyanKoppelman 13:53, 30 Mar 2005 (UTC)

Antonin Scalia prefers "original meaning" to "strict construction", and gives the example, "Do you use a cane?" means "Do you walk with a cane?" which is not according to the strict construction. The article pointed out that many of the criticised decisions have nothing to do with the original meaning of the constition, and some don't even pretend to, e.g. the Roper v Simmons where other countries and "evolving standards of decency" were appealed to.203.213.77.138 03:16, 6 Apr 2005 (UTC)

Shit. Look at the books listed: "The Supremacists: The Tyranny Of Judges And How To Stop It" and "Men In Black: How the Supreme Court Is Destroying America" That's neutral.--RyanKoppelman 13:58, 30 Mar 2005 (UTC)

In a book and links list, naturally there will be partisan things. Many articles have list subdivisions of pro and con. 203.213.77.138 03:16, 6 Apr 2005 (UTC)

Whom in GOD"S NAME inserted "American corporate media" into this article? That's blatantly out of line and I'm editing it.

If I may make a general comment about the page, I must say not only as a law student, but as an anglophone, this has to be one of the most disorganised, poorly written pages I've encountered on Wikipedia. I agree that there has to be more written on international charges of judicial activism, and some blatantly biased phrases must be done away with. [Uberchouette, 5 april 2005]

• We have to get past the fact that Judicial Activism is only negative when applied to label rulings as wrong. It is itself a neutral idea that has become controversial due to negative connotations from usage. Melvin D 18:14, 25 November 2005 (UTC)

Is it neutral now?

I made some changes, and I hope it's more neutral now. The article still sort of sucks, but can we at least change the red sign to a ((cleanup)) banner? (retroactive signing: Dave (talk))

No one has complained, and it's been about 5 days, so I'm going to do it. Dave (talk) 14:31, Apr 22, 2005 (UTC)

"related rulings"

I removed

Roper v. Simmons (2005) ruled that executing a minor was "now" unconstitutional, even if it had not been "until recently".

because:

1. it's POV in its wording
2. It's better if we don't list "activist" cases, as there is no consensus about which cases are activist. See the Neutrality discussion above on this page.

Dave (talk) 04:17, May 13, 2005 (UTC)

Jurisdiction

"Jurisdiction" generally refers to the scope of a court's power to hear and decide cases and to issue orders. In general, criticism for judicial activism does not implicate jurisdiction per se -- the critic does not maintain that the case was not properly before the court for decision -- but charges that the basis for the judge or judges' decision was illegitimate. Judge Magney 16:46, 12 July 2005 (UTC)

It follows that if a court makes a decision without jurisdiction, its basis is "illegitimate." Judicial activism is essentially used to imply that a court has gone out of its way to reach a desired end. Jurisdiction in this regard is relelvant, especially if a court first holds it lacks jurisdiction but then decides a question anyway. Unended 14:02, July 23, 2005 (UTC)

Roe paragraph removed

The "penumbra" metaphor is not original to Roe, but is found in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Here is a link to a text of that opinion:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=381&invol=479

Since I am not sure whether a discussion of Roe or the "penumbra" metaphor is more important to you, I deleted the discussion entirely so you have a clean slate to work with at your convenience. Judge Magney 01:51, 14 July 2005 (UTC)

You are right. In my hast, I thought Griswald had come after Roe and didn't check which was the origin. The origin seems less important than the reliance upon it. I think Roe and Griswald's discussion of the penumbra fits in here some how. Strict constructionists despise the penumbra theory. It has a role in this debate. Hopefully, in the next couples days or weeks, I work together something more true to the cases.--RyanKoppelman 17:33, 14 July 2005 (UTC)

Bush v. Gore

Removed the following: "Defenders of SCOTUS' ruling in this case claim they merely overturned an activist interpretation of the state constitution by the Florida Supreme Court." Federal courts have no authority over state court interpretations of state law. See the Erie doctrine. The notion that a federal court can intervene to upset the highest state court's interpretation of state law is an obsene notion. Federal courts are only empowered to interpret federal law. They can apply state law, in diversity jurisidiction suits, but they must apply it faithfully in accordance with how the highest state courts have interpreted it. This is why the practice of certifying state law questions from federal courts to high state courts exists. Unended 14:00, July 23, 2005 (UTC)

There are those who would say the Erie doctrine was activist, since it overturned 150 years of precedent and disrupted the Hamiltonian view of the role of the federal judiciary without basis in the text of the constitution. Anyway, Judge Posner defends Bush v. Gore on these grounds, so just because you think Posner is wrong is a reason to write (and cite to) a counterargument, rather than a reason to exclude the position from the article. -- FRCP11 08:40, 3 October 2005 (UTC)

"The notion that a federal court can intervene to upset the highest state court's interpretation of state law is an obsene notion. Federal courts are only empowered to interpret federal law. They can apply state law, in diversity jurisidiction suits, but they must apply it faithfully in accordance with how the highest state courts have interpreted it." - This shows a complete misunderstanding of the Supreme Court opinion (see majority opinion). They must apply if faithfully, but they are only accountable to the State law --NOT to the State Court's interpretation. The Florida Supreme Court was NOT applying or even seeking to claim to be applying the actual election law. The State Court had no legitimate role in the proceedings. If they had not taken control over a case belonging rightfully to the Florida State Legislature, the Supreme Court would not have intervened. There is not contest that the Supreme Court, NOT the Florida Court, applied Florida law according to its clear designations. The question about whether this is a situatin of JA refers to the STATE court's illegitimate role, not just the SC. The SC ultimately would only be responsible to enforce the Constitution which states the election should have reverted to the House of Representatives. —Preceding unsigned comment added by 69.254.28.213 (talk) 20:45, 30 September 2007 (UTC)

Three-part definition

I put the three-part definition on the main page. I hope some form of it stays, because it's (as stated) simple and it's interesting. Anyway, since I'm not a legal expert, I wanted to back it up a little more here, in hopes that it will stay on the page. I originally heard the definition on this Chicago NPR program, "Odyssey", at September 13, 2005, 12:28pm.. The speakers are David Strauss (Harry N. Wyatt Professor of Law, University of Chicago) and Maxwell Stearns (Professor of Law, George Mason University). Here are their relevant comments:

David Strauss (28:07): I do think these terms are basically... "originalism" for the most part, "strict constructionism" certainly, and "judicial activism"... are terms that get thrown around too much, and if they're to be used, they have to be given clearer meanings. Let's take judicial activism, for example. It can mean, so far as I can tell, one of three things. It can mean a judge who is very willing to strike down laws enacted by congress and the state legislatures; it can mean a jugde who is willing to declare laws unconstitutional. If that's the definition of judicial activism, then the most prominent activists today are conservative judges who are interested in striking down affirmative action laws, and campaign finance laws, and laws regulating property. Activism might also mean someone who departs from precedent, as Max suggested. And again, today it happens that the judges departing from precedent are conservative judges; that hasn't always been the case, there were liberals a generation or two ago. Or activism might simply be an epithet that someone uses to mean "well, you're departing from what the constitution should be; you're interpretting it in a way that shouldn't be interpretted, and that's why you're an activist", in which case it really is just synonomous with saying "I disagree with you, but I don't want to stop with saying I disagree with you, I want to say you're acting lawlessly".

Maxwell Stearns (30:35): ... I fully agree with David's assessment of the three possible meanings one could ascribe to "Judicial Activism".

--Interiot 00:07, 14 September 2005 (UTC)

Sorry for the revert of this edit, I didn't see where that was going, and "more defined" doesn't seem to make gramatical sense, especially with the next paragraph's "more broadly". Feel free to re-revert if you explain the intent of the edit, or otherwise make more changes so those couple of paragraphs are coherent. --Interiot 22:28, 1 October 2005 (UTC)

Regarding the 4th rule of "In the U.S., exceeding the scope of the authority of the judicial branch's role in the Constitution's scheme of separation of powers", that seems to encompass the other three rules, and shouldn't really be placed alongside the three rules. If kept, it should probably be moved up into the summary next to "Broadly speaking, judicial activism is the act of replacing an impartial interpretation of existing law with the judge's personal feelings about what the law should be.", or otherwise presented as being the highest-level one-line definition. --Interiot 03:30, 3 October 2005 (UTC)

I have a great deal of respect for David Strauss, who deserves his own wikipedia entry. I disagree with him here, though. (1) What the text of the article says is not an effective description of what Strauss says, and (2) Strauss's range of possible definitions of judicial activism is a POV range, because it pretends that judicial activism is indefinable and thus that some liberal judges aren't guilty of it. Strauss is absolutely correct that the term judicial activism is thrown around too loosely and too often to mean "a decision I don't like," but a number of prominent conservatives--Scalia, Roberts, Easterbrook--have defined judicial activism as a function of acting outside of the judicial power, and that's something distinct from each of the three proposed Strauss definitions: it's both broader and narrower than the first, substantially broader than the second, and substantially narrower than the third. Strauss's "definition" is a part of a clever attempt by the liberal wing of academia to defend liberal judicial activism without actually saying that judicial activism is a good thing by making the concept of judicial activism so indeterminate that it's easy to accuse conservative judges of it and thus discredit the whole concept. (Cass Sunstein's recent book and Mark Gewirtz's op-ed is precisely on point.) If the point of the three "rules" is to convey Strauss's views, then it should be clearly stated that this is an attempt to convey Strauss's views, rather than expressed as an NPOV set of potential definitions of judicial activism. Like I said, the article needs a lot of work; it doesn't reflect a lot of the academic debate from the last few years. -- FRCP11 08:35, 3 October 2005 (UTC)

I'm not a legal expert (nor even a decent armchair legal expert). Although the quote was from NPR (and thus not necessarily something that everyone would agree with), it was still much more narrow and precise than what came before. I don't know enough about the topic to make it NPOV really, I just thought that the article definitely needed to go more in the direction of academic precision. I sincerely hope that people with more academic knowledge on this article contribute to it as much as possible, so as to steer this article firmly in that direction. --Interiot 17:32, 3 October 2005 (UTC)

Black's Law Dictionary definition

I'm re-adding the Black's Law Dictionary definition. This article has quite a few alternative definitions, and while the article certainly needs cleanup by an expert, the Black's Law Dictionary quote is one of the more authoritative things on this page. Also, regarding the "what the hell does precedent mean" comment, please read up on case law, I think it's clearly a core part of the discussion about judicial activism. (I've moved the definition below the M-W definition though, in case others agree that the M-W definition is more correct) --Interiot 16:04, 11 November 2005 (UTC)

My problem with using Black's as an authoritative source is that Black's (in the 6th ed., at least) defines Originalism as the search for the framer's Original intent. Debunked at Originalism and Original intent. This suggests to me that either Black's has a research problem, or an agenda, one which might suggest that they would not be keen to give a flattering description of Judicial activism. Simon Dodd 14:44, 22 November 2005 (UTC)

Mirriam-Webster's dictionary of law's definition is a practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are opposed to or in opposition to supposed constitutional or legislative intent.

Just curious, is it copyright infringement to use the Black's Law definition. I have absolutely no proof that it is; I was just wondering.

If I had Black's Law Dictionary handy, I'd list its definition of fair use.  :) Anyway, in the US, the "Amount and substantiality" and "Purpose and character" sections of Fair Use law almost certainly allow small excerpts for semi-eductional purposes like this. --Interiot 22:28, 30 November 2005 (UTC)

Added to Eagle/Desk Eagle 01:19, 2 December 2005 (UTC)

Offer to help as part of Cleanup Crew

Hello, I'm ProfessorBurgess. I have a law degree from UNC-CH and I studied Supreme Court History with Chief Justice Rehnquist. I gave a talk defining Judicial Activism at Rutgers University Camden Campus in October of 2005. I am currently working on a law review article on the same topic. I would like to be involved in the clean up or rewrite of this article beginning May 2006. (I'm waiting until after my semester ends. Thanks.

Hello this is Eagle. If no one objects, I will begin to work with the grammar on this subject.

• Any objections or encouragement/constructive advice please post in my Talk_....As I would like to begin soon...Perhaps December 2 2005.
• I am going to address grammar only. I am not a lawyer. But I think that clarity cannot hurt. This article is confusing and is not concise

   P.S. I am doing this as part of the clean up crew, As requested above.

I am a participant
in the Cleanup Taskforce.
View my desk here.

--Eagle 01:40, 2 December 2005 (UTC)

Opening sentence proposition

In the interest of clarity I propose this sentence...

--"Judicial activism refers to judicial decisions which do not follow precedent or which otherwise exceed the scope of established law. "

Instead of...

--"In law, particularly in common law jurisdictions, judicial activism refers to judicial decisions which do not follow precedent or which otherwise exceed, or are perceived to exceed, the scope of established law. Judicial activism can be contrasted with judicial restraint."

This is clear and NPOV. It describes the article without confusing everyone.

P.S. This is just a start. The edit will be made now. If undone please explain why. Or better, just tell me on this talk page, as I am editing more than just the initial paragraph.

Eagle (talk) (desk) 22:29, 2 December 2005 (UTC)

Discussion of the definition of Judicial activism

I would like to see some NPOV proposals for what the definition is. I am not a legal expert. Not even close, so any help is useful.

   Note: I am asking for What Judicial activism is,
         Not when Judicial activism occurs.

This is the Wiktionary definition. Try modifying this to fit into Wikipedia.

   (law) a pejorative term describing the act of replacing an
         impartial interpretation of existing law with the judge's
         personal feelings about what the law should be; a political
         epithet applied to judges who allegedly exceed their 
         authority; 

This is copied directly from Wiktionary.

_____________________Eagle (talk) (desk) 00:04, 3 December 2005 (UTC)

P.S. I am going to cease editing until a satisfactory NPOV definition is in place. I believe that without a NPOV definition reordering of the article is impossible. I want to know What it is, not when or why it happens.Eagle (talk) (desk)

To say it is defined as pejorative is incorrect. It can be used in a pejorative way, but to define it as pejorative implies that the accusation is always with out merit, which is misleading and a POV. I don't think we should get too wrapped up in a legal definition. Legal experts are going to be defensive on this term which criticizes their profession. We need to criticize their profession though as a counter balance to what can become unrestrained power if not checked.

If you ever talk to a legal professional you will find that they are very adamant that the judges are above question and that their interpretation of the law is the final word. To say the least, this is not a view shared by all persons, and wikipedia is supposed to represent the average user.

• Two comments on this page have noted that the term should be defined more neutrally... that while in practice it's usually used perjoratively, I guess the academic concept (like judicial review?) is neutral. --Interiot 02:13, 4 December 2005 (UTC)

Yes, the perjorative use can be discribed later in the article. Eagle (talk) (desk) 16:46, 4 December 2005 (UTC)

Another excerpt that could be included in the article if it's useful. --Interiot 03:51, 13 December 2005 (UTC)

If, to resolve the dispute the court must create a new rule or modify an old one, that is law creation. Judges defending themselves from accusations of judicial activism sometimes say they do not make law, they only apply it. It is true that in our system judges are not supposed to and generally do not make new law with the same freedom that legislatures can and do; they are, in Oliver Wendell Holmes' phrase, 'confined from molar to molecular motions.' The qualification is important, but the fact remains that judges make, and do not just find and apply, law.

• Richard A. Posner (1985). The federal courts: Crisis and reform. Harvard University Press. ISBN 0674296257.

OK, untill a definition can be reached I am going to take this off my desk. Please feel free to put it back at any time(When a definition is reached)Eagle (talk) (desk)

I have removed the NPOV tag

I have removed the NPOV tag because as far as I can tell no discussion on NPOV has happened in the last few months. Please feel free to reinstate the tag if you wish. Sdedeo (tips) 20:57, 14 January 2006 (UTC) 03:27, 28 January 2006 (UTC) 03:27, 28 January 2006 (UTC) If one reads all the above comments, one would be forced to conclude that the phrase "judicial activism" is used to define what other judges are doing that one does not like. Unless we use a definition as simple as this, I recommend we take the article off because all it has become is a political battleground with the side with the most patience for contniuing the argument winning. That does not meet the standards for a quality article in an ecyclopedia in my eyes. For the avoidance of doubt, I'm not trying to offend anyone, just trying to put a little perspective into the discussion. 03:27, 28 January 2006 (UTC) P M Donovan 03:27, 28 January 2006 (UTC) 03:27, 28 January 2006 (UTC)

Page is still a huge mess

And recent "NPOV" edits have only made it worse. Which commentators argue that Roe v. Wade is "explicitly enumerated" in the Constitution? As far as I know, the debate has always been whether it was appropriate to impliedly read it in. Honest question.

The references are good, and some subsections are decent, but this ought to be rewritten from scratch to be more coherent. Why are there separate "definitions" and "criteria" section? Each with its own mess of contradictions?

I propose the following structure, which lends itself to NPOV descriptions.

Introduction (noting lack of academic consensus over definition and whether individual accused acts of activism are good or bad, but general derogatory use of term in politics divorced from legal consistency)

1. Individual theories of activism
   1. Easterbrook
      1. Criticisms of Easterbrook
   2. Sunstein
      1. Criticisms of Sunstein's approach
   3. Breyer
      1. Criticisms of Breyer's approach
   4. Bork
      1. Criticisms of Bork's approach
   5. ...
      1. ...
2. Theories of interpretation and activism
   1. "Living constitution"
      1. Originalism
3. As applied in history
   1. Marshall Court: Chisholm v. Georgia and Marbury v. Madison

3.2. Dred Scott 3.3. Plessy v. Ferguson 3.4. Lochner v. New York 3.5. 1937 "switch in time" 3.6. Warren Court 3.7. Roe v. Wade 3.8. Lopez v. United States 3.9. Bush v. Gore

(for each case, the argument why it was judicial activism, the argument why it wasn't, and a reference to a main article for the arguments for and against the case)

4. Use as epithet in lay politics 4.1. By the right 4.2. By the left

5. Books 5.1. Legal theory books 5.2. Popular press

6. External references

Any reason this wouldn't work much better? -- FRCP11 16:38, 16 April 2006 (UTC)

As Justice Roberts said at his confirmation last summer, the right to privacy is explictly listed in the Bill of rights (and Roe just applies it.) The proposed outline is excellent! Rjensen 16:58, 16 April 2006 (UTC)

Misleading omission of abuse of term

NPOV should be reinstated. I'm flagging it for POV-check.

The article as written omits clear overview of the popular abuse of the term. Reading the news it is apparent that the term is frequently used, mostly by conservatives, to mean nothing more than "the court overturned a law or rule I wanted". It has become a political "code word" with the right for such rulings where the ruling the right wanted would have in fact required Judicial Activism (in the sense that to have ruled in their favor would have required ruling against the text of the Constitution) to have ruled in their favor.

It creates a misleading impression (a non-NPOV impression) of the term not to directly address this purely political aspect of the term. --Benjamin Franz 14:36, 19 June 2006 (UTC)

What exactly do you find POV? There is no conservative element in the description. It is known in legalese as "over-reaching" and is something that judges watch over each others shoulders for, and can apply equally to any judge. Before it was argued that judicial activism has a good side which is like arguing that murder has a good side. That is not what a NPOV is, the facts come first. Ask anyone if there is any good side of judicial activism and except for a few people you will get the an almost unanimous no. As it stands in common usage the term IS negative. Whether you can apply it to for example Roe v. Wade is where you should make your case, not in the actual definition. If you are being defensive on the fact that more liberal judge are accused of judicial activism than conservative judges, I think you should make your case to balance it in the judicial restraint entry, not try to screw with the definition here.

If something is defined as overreaching, then POV is built into the definition. In recent decades conservative judges have far more often struck down laws as unconstitutional. Of course if one thinks the law is constitutional, then that is overreaching. Rjensen 02:28, 20 June 2006 (UTC)

What? We are describing a judgement call, not making one.

It is POV to present it as primarily as a legal issue of judges 'over-reaching' when in common usage it is more often about the political issue of 'ruling against a position popular with conservatives'. By omitting that aspect it mis-leading suggests that the issue is only about judges abusing their positions when it is at least as often about judges being ACCUSED of Judicial Activism by the Right for not ruling in their favor. Failure to present that major aspect of the usage of the term is one-sided and therefore non-NPOV. It isn't about whether or not the term is negative: It is about whether or not the term's normal usage is being covered completely or only from one side. --Benjamin Franz 18:01, 20 June 2006 (UTC)

The problem I have with this is that it had a completely good and clear definition before some people decided that they would like to use it in new and bizarre ways. I suspect that they just wanted to use the negative connotation of the term willy-nilly for their own purposes. On the conservative side - why do you people who oppose this article keep bringing up lib/con differences? You are the ones trying to add a POV.--Omnicog 17:54, 22 June 2006 (UTC)

What is a Hacker? A person who is a wizard class programmer or a malicious person who attacks computer system security systems? The first definition preceded the second by decades. The second is the one likely to be used by the general public. Much to the frustration of "old school" hackers. To point to the legal definition of JA while ignoring the popular usage that inverts its meaning is dishonest and POV. It is the same as picking and choosing among dictionary definitions to "prove" that the word "cult" is a neutral word to describe a religion while ignoring the adjacent definition that notes that the word is normally considered negative. "A half-truth is a whole lie." As to the issue of noting that the misusage appears to be a primarily Conservative political tactic - it would only be POV if someone could demonstrate significant usage of the term by Liberals. JA is a Conservative cause d'celebre. Even a brief Googling of "Judicial Activism" news shows that very clearly. --Benjamin Franz 22:18, 22 June 2006 (UTC)

Well there should be a separate entry on the abuse of the meanings of the word. If in your apt hacker example there are a minority of people that use a twisted definition as a tool to make an argument, then this is an abuse of language in order to make a point. It is not a a case in which words edge towards new meaning - supported by people who normally apply those words. It is, in my opinion, an attempt to hijack the meaning by some legal intellectuals, who don't normally apply the term, and who want to say that it is A-OK.--Omnicog 14:06, 23 June 2006 (UTC)

I'm not remotely suggesting that the definition should be twisted. I'm saying there needs to be mention of the misuse of accusations of JA as a political tactic. It misleads to fail to note the frequent misuse of the term by those with political agendas. --Benjamin Franz 04:36, 24 June 2006 (UTC)

The definition is that it IS a criticism. There is a consistent meaning: Politically motivated judgements for which there is no proof because we can't read the minds of judges, and judges are unfortunately the last word of what is officially right and wrong, and our only recourse is to loudly criticize their lack of supportable reasoning. --Omnicog 18:28, 28 June 2006 (UTC)

Regarding definition of JA, possible alternatives

Frankly, I also find the notion that this article does have a neutral point of view to be dubious. There is no absolute authority on what constitutes "judicial activism". Many people have written articles and books on the subject, but as a whole they are laregely incoherent. In other words, the definition is contested; it is not clear cut. "legislating from the bench" and "political reasoning" viz-à-viz "an evaluation of applicable law" are all rhetoric -- they mean nothing unless you define what the law is, or what the appropriate function of the courts are, or how a democracy is supposed to work, or what the rule of law means. (All of which just also happens to be contested as well.) It is apparent that there are many point of views regarding "judicial activism" and presenting the concept as though there is only one definition is nonsense. "Common sense" regarding its use is, to be frank, irrelevant. Wikipedia is not a bank of common sense, it is a bank of information and the two are incompatible. --Ben 18:11, 25 June 2006 (UTC)

I find that this "the definition is that there is no definition" to extremely unhelpful, not to mention destructive of achieving a consensus NPOV. There is a definition - just break it down by component words - Wikidefinition of Judicial The judiciary, also referred to as the judicature, consists of justices, judges and magistrates among other types of adjudicators. Under the doctrine of the separation of powers, it is one of the three branches of government. The primary function of the judiciary is to adjudicate legal disputes. plus Wiki Definition of Activism, in a general sense, can be described as intentional action to bring about social or political change. This action is in support of, or opposition to, one side of a controversial argument. And then combine the two - judges who engage in actions to bring about social or political change by taking sides on a controversial issue. Then note that this may happen and we may not be aware of because in some cases it has the backing of law. It is only made really apparent when there is a very flimsy basis in law that the average person can detect. They are not supposed to do this because they are apolitical appointment and are supposed to use the law and their legal learning, not their political beliefs, as their guide.--Omnicog 17:20, 27 June 2006 (UTC)

I do not doubt that judicial activism can be defined; the problem is finding a neutral definition. Basing the definition of any one term on its literal meaning is prone to be flawed and simplistic. It is, moreover, a thinely veiled forum to insert the bias of any one person into the definition, especially those who consider the term to be utterly derogatory in nature. It is quite telling that you include the "separation of powers" in your literal interpretation of "judiciary". The background to "judicial activism" similarily describes the issue as a violation of the separation of powers, which just happens to be the prime argument of those who just happen to use "judicial activism" in a critical manner. An argument which may also be considered to be flawed. If there is going to be an article regarding judicial activism and a description of what exactly it is, all sides must be presented - 1) what it is, 2) is it appropriate etc. The article to date does that very flimsily if not at all. --Ben 20:00, 27 June 2006 (UTC)

I didn't put separation of powers into the definition - read it again - that is within the quote that I took from wiki-definition, which I did not write. If someone else found it important to place the separation of powers into the definition that just confirms my position. And it is not exactly a controversial topic. Separation of powers is central to our way of government and spelled out in no uncertain terms in The Constitution of the United States. Am I understanding you correctly that you believe that judicial activism has a positive meaning? I think can make the case that some judgements in which judges overreach have some good effects, but the actual process of judicial activism, which is defined as overreaching for political purposes is in no way good and is dangerous. It is judgement in which judge takes a law, makes a judgement supposedly based on that law, and when the average person sees it and says "What? How did he figure that?". --Omnicog 17:50, 28 June 2006 (UTC)

It is true that the separation of powers is pretty important. However, one of the big question, of all of this, is whether the separation of powers is engaged. The Courts clearly have the exclusive power to interpret and apply the law to cases that come before them and regardless of whatever rhetoric such as "legislating from the bench", that is clearly what they are doing, as is their right and responsibility. In other words, they are not so blatantly drafting new laws; the courts are simply ruling on questions of law. Is judicial activism good or bad? Is judicial activism a form of "overreacing for political purposes". Well that depends on what it means. It has often been contrasted with different philosophies such as original intent, "judicial restraint", the Supremacy of Parliament (especially in Canada), textualism, democracy and the abuse of discretion and of the judicial powers. It has been argued by some that judicial activism is, in fact, consistent with original intent, democracy, the proper role of a judiciary, etc. But, yet again, some have reservations and feel that "judicial activism" should be exercised rarely and in only specific circumstances. Judicial activism, to put it plainely, may be good or bad or appropriate depending on who you are asking and how they define it; the article, by contrast, plunges into the issue by implying that it is always wrong, an abuse of power and so forth. To make it worse, the definition appears to be sprung out of the middle of no where, without any references or citation whatsoever. That basically underlies the problem with the POV in this article: the definition of judicial activism is contested, in flux, but apparently there is no measure of ambiguity in the article, especially at the very top. I frankly don't care about the perceptions of the "average person" regarding the interpretation of the law; that appears to me to be irrelevant in an article regarding "judicial activism"; chances are the average joe has so little knowledge of the law they that will apply the term to any decision they don't like. Hence, why "common sense" is also meaningless in wikipedia. --Ben 06:38, 29 June 2006 (UTC)

We are not talking, or at least I am not talking, about the finer points of the latitude that some judges take when resolving difficult, poorly defined or controversial issues. I refuse to be drawn into a debate about originalism and textualism, because that is a complete red herring by those apoligist for judicial activism. I am talking about the agregious and obvious, even to the lay public, misuse of judicial interpretive powers for obviously political ends. They who use the law as window dressing for their political judgements. This denies the public any recourse because they are the last word on many issues and they know it. They know that legislature will never use their power of impeachment on them because it is political suicide. Absolute power corrupts absolutely, and a judge who has abandoned the law as their guide is an absolute power indeed. Senator Cornyn had a brilliant comment on this. --Omnicog 16:55, 29 June 2006 (UTC)

Indeed . . . we are talking about what judicial activism is, not the abuse of discretion or so called "judicial tyranny". While you may not care to be drawn into a debate about originalism and textualism, it is very much relevant to how many academics and jurists define judicial activism. Others think it is irrelevant. F.L. Morton, for instance, has defined judicial activsm as the judicial vetoing of any legislative or state action, and rejects any excuse for it even if rooted in originalism or textualism or whatever. Notwithstanding this diversity, you have apparently made up your mind regarding so-called judicial activism, referring to it as though it is synonymous with abuse of power; that is very much an open question, and such a point of view ought not dictate the contents of the article. It seems appropriate, at this moment, seeing that this is indeed the case, that we affirm that the neutrality of the article is disputed. Agreed?--Ben 05:41, 30 June 2006 (UTC)

Jurists have their own technical terms for aspects of judicial activism. "Judicial activism" is not a legal term, it is a term used by legislators and the public to describe what they see as problems with the judiciary. I have seen the very odd definitions that legal scholars have come up with for JA, and they seem to have little in common with what I think is understood by the public. Language is a tool to consistantly communicate ideas, and I think what I have expressed over and over again in many different ways is exactly what most people, conservatives and most liberals perceive it to be. I believe jurists strange defintion of of what I would call "broad interpretation", is that they can't handle the criticism. I wouldn't like it if someone was criticizing the very essence of my profession, but jurists have chosen a profession in which their actions can have serious long term consequences on the development of the nation. They must be willing to take extremely stident criticism - this is not something that we can be polite about, or hide behind verbal manuevering. Morton is looking for a hard and fast rule for applying the term - that is one person's opinion - but it is based on the idea that when a elected branch makes a decision it is, for right or wrong, democratically legitimate and it would take a very clear and present conflict with past law to overturn it wholesale by the judiciary, but this is happening all too often. So for all intents and purposes, and in an insulting manner, he is saying it is better to just assume that it is judicial activism. So the definition has the same root definition that is in the beginning paragraph of this article. If you want to explain this connection... --Omnicog 19:16, 30 June 2006 (UTC)

alternative definition

I've re-reviewed the definition that is presented and I suppose, in general, it is somewhat reasonable; however, my only quarrel is the following. When has the public OR legislators ever read a court decision, let alone had the time to read court decisions? For me, that is the kicker. If the public has not read the reasoning of a judge or of a court than how would they know how they interpreted a certain statute or law? If they don't know how the law was interpreted how could they make the accusation of JA? The truth is the public nor most legislators probably do not know, but nonetheless use the word to describe court decisions which they do not like -- not because of the reasoning the judge has used, but because of the result of the decision. If, for instance, a court were to interpret a law in a very very strained and questionable way (e.g. odd number of words in a sentence=a positive requirement), but it nonetheless came to a result with which the entire public agreed with, who is going to cry "judicial activism"? (let's assume for that example that that was an example of political reasoning in lieu of an objective and reasonable evaluation of the law). No one is, because very very very very few people would have read the decision and as far as most people are concerned the most important part of a judge's profession is making decisions, which = certain results. Therefore, with this in mind, it seems to make far more sense to have a definition of JA which accomodates this reality. Perhaps JA could best be described as a philosophy of judicial interpretation which gives rise to certain results with which critics find offensive or questionable.

regarding other definitions of JA, and possible evolution of the meaning of the term

Notwithstanding the above, Morton's definition of JA is consistent with a literal meaning of JA. Activism quite often means to conflict with another something else, in the case of judicial activism it could as well be another elected branch. (In other words this definition of JA seems consonant with the very concept of judicial review.) I fail to see the connection between Morton's view of JA and the definition in the article. Morton believes even plausible interpretations of the law ought not overrule the policies of another elected branch; that is a far cry from the definition of JA in the article, which describes JA as purely political reasoning with no connection whatsoever to the law. Morton's definition of JA may be uncredible by the fact that the courts must act in such a conflictive manner within the separation of powers, but it ought not to be dismissed by virtue of that. Perhaps the definition of JA has evolved throughout the years to become something more exotic and perhaps reasonable. Bork, for instance, has defined JA in Coercing Virtue to mean both the interpretation of the law which has no connection whatsoever to the original intent of its drafters, in addition to describing "activist judges" as those who are using the judicial powers to push their own political agenda; all very heinous charges compared to the charge of "judicial review". However, the question remains: has the meaning of the term changed in time to become more reasonable? --Ben 16:40, 1 July 2006 (UTC)

I think this is judicial activism on judicial activism. If judicial activism is taking legal wording and twisting its meaning to suit their own purpose, then I think that judicial activists are taking the actual words "judicial activism" and twisting its meaning to fit their purposes. That is what they are good at. That is what I believe is going on, and what is causing some of the confusion in this article. --Omnicog 15:20, 4 July 2006 (UTC)

Omnicog, I completely agree with you, whether it is twisiting the meaning of the law or bypassing it alltogether. The question remains, however, what the hell is JA and who is doing all the twisting? I would also appreciate it if you could give some commentary regarding my arguments with respect to the result of a decision --Ben 17:04, 5 July 2006 (UTC)

Section POV

The intro is heavily POV. It starts with the statement "How to spot judicial activism?" I'm sorry, but IMHO, that's heavily POV. Ardenn 03:38, 2 July 2006 (UTC)

Hi Ardenn. I don't see how the statement "How to spot judicial activism?" is biased one way or another. It seems a neutral point of view to me. Please explain. Thanks.--Vincet 04:00, 2 July 2006 (UTC)

For me, it implies that judicial activism is a bad thing, by saying "here is how you spot it." Like how you spot rabies, or a bad disease. Ardenn 04:09, 2 July 2006 (UTC)

Instead of the phrase "How to spot judicial activism?", would the phrase "Judicial activism may be found in a court issued opinion as follows." be any better?--Vincet 04:20, 2 July 2006 (UTC)

A little. I still think the intro could use a re-write though. It just rubs me the wrong way. It has sympathetic tone that to me is condescending. Ardenn 05:32, 2 July 2006 (UTC)

I read sympathetic tone and took a stab at eliminating any view that could be thought of as a "competing view." The main neutrality problem might be in the term "activism." Activism is defined as a policy of taking direct and militant action to achieve a political or social goal. If you take militant action, some people will love you and others will hate you, but no one is going to remain neutral. Wikipedia characterizes activism as "intentional action to bring about social or political change." Some incidents of judicial activism may be intentional. Some incidents of judicial activism may be intentional and done with a desire to bring about social or political change. However, after extensive study on this matter, I don't believe that most judicial activism is intentional nor is done to bring about social or political change. Please let me know which words in the Lead/intro section that rub you the wrong way and I'll see if I can come up with something more neutral.--Vincet 14:49, 2 July 2006 (UTC)

I am somewhat annoyed at the new change of the definition; it appears far more clumsy than the previous one and is far too narrow to be accurate. It is, furthermore, an explicit point of view which originalists may find disagreeable. JA encompasses far more than "failing" to implement the actual language of a statute. See the previous section: Regarding definition of JA, possible alternatives --Ben 17:44, 2 July 2006 (UTC)

Hi Ben, I put my basis for changing the JA definition at the bottom of the[Lead / intro section]. I looked over the previous section: Regarding definition of JA, possible alternativesand you make many good points. I do believe that the definition for JA I provided is broad enough to encompass all these concerns and Wikipedia's NPOV policy. Please identify the language of the definition that you find clumsy and those areas that you do not think is covered by the definition and I will be happy to respond with my thoughts. Thanks--Vincet 04:59, 4 July 2006 (UTC)

Hey, Vincent. Before I respond I would like to give you kudos for your calm and open-minded demeanour; it is very clear that you are working in good faith. Now that I have said that, I wish to maintain some form of coherence. It seems far more appropriate to address your arguments in their respective section. I do so accordingly. --Ben 17:10, 5 July 2006 (UTC)

Constitution is supreme law

The government is controlled by the Constitution, and when the legislature or executive violates that Constitution it is the duty of the courts to reverse them. That is judicial activism and in recent decades it's mostly conservative judges who do that sort of reversal. The article must make that clear. Rjensen 16:48, 4 July 2006 (UTC)

The summary that you removed was not a good one, but the new summary said that overturning new law with reference to a constitution is the only kind of "Judicial activism", and that all such overturning is judicial activism. That is not supported by the rest of the article. --GunnarRene 18:02, 4 July 2006 (UTC) I've now made a new summary based on previous versions. --GunnarRene 18:03, 4 July 2006 (UTC)

Please see Words_to_avoid:Point out, note, observe and WP:WEASEL --GunnarRene 18:57, 4 July 2006 (UTC)

Are you talking about the Methods section? If you are - I think I see where you are going with this - but in this case it is not a weasel word - the critic are well defined in the start of the article. It is the person making the accusation of judicial activism. When it is used as a weasel word it is completely anonymous - you don't know where that person stands. I can dig up exact examples of persons who are critics that use judicial activism for each.--Omnicog 21:42, 4 July 2006 (UTC)

No, the methods section is not too bad, though you would improve the article if you provided those examples as references. I was directing this at the summary (abstract), where one side of the debate are "defenders of the courts" who "point out" A, while the other side are "hostile critics" who "consider" B and "assume" C (giving undue preference to A over B and C). --GunnarRene 11:00, 5 July 2006 (UTC)

A-B-C the article is about attacking the Courts, and is not symmetrical. The attackers in fact do take the aggressive initiative and the defenders in fact are rather calmer. Listen to talk radio. Rjensen 12:26, 5 July 2006 (UTC)

Deletion of "CASE LAW"

The following is the exerpt in question:

Judicial activism describes an act of judicial interpretation that critics consider to take on suspected political reasoning, rather than an evaluation of applicable law. The extent of the activism may be measured by how far the judiciary has substantially changed the original intent of the law handed down by an elected legislative branch, or radically diverged from the conventions contained in case and common law. [Revision as of 18:45, 5 July 2006]

I have deleted "case [law]" from the last sentence because it is redundent. Case law is, for all intents and purposes in this article, the same thing. I aduce the following evidence:

common law, n. [fr. Law French commen ley "common law"] 1. The body of law derived from judicial decisions, rather than from statutes or constitutions; CASELAW. Cf. STATUTORY LAW. [. . . .] 2. The body of law based on the English legal system, as distinct from a civil-law system. Cf. CIVIL LAW (1) 3. General law common to the country as a whole, as opposed to special law that has only local application. 4. The body of law to which no constitution or statute applies. [BLACK'S LAW DICTIONARY: Second Pocket Edition, Ed. Bryan A. Garner (St. Paul, Minn.:West Group, 2001), 114.]

common law 1. The part of English law based on rules developed by the royal courts during the first three centuries after the Norman Conquest (!066) as a system applicable to whole country, as opposed to local customs. [. . . .] 2. Rules of law developed by the courts as opposed to those created by statute. 3. A general system of law deriving exclusively from court decisions. [Oxford Dictionary of Law: Fifth Edition, Ed. Elizabeth A. Martin (Oxford:Oxford University Press, 2003), 93-94.]

CASE LAW See common law.

[. . . .]

COMMON LAW The system of jurisprudence, which originated in England and was later applied in Canada, that is based on judicial precedent rather than legislative enactments; it is to be contrasted with civil law (the descendant of Roman law prevalent in other Western countries and in Quebec) and equity (the body of rules administered by the Court of Cancery). Common law depends for its authority upon the recognition given by the courts to principles, customs, and rules of conduct previously existing among the people. It is now recorded in the law reports that emobdy the decisions of judges, together with the reasons they assigned for their decisions. The King v. Mason (1918), 39 D.L.R. 54 (Que. Police Mag.Ct.). [John A. Yogus, Canadian Law Dictionary: Fifth Edition (New York:Barron's Educational Series, Inc., 2003), 43, 53.]

Case law (also known as precedential law, black-letter law, decisional law or non-statutory law) is the body of judge-made law and legal decisions that interprets prior case law, statutes and other legal authority -- including doctrinal writings by legal scholars such as the Corpus Juris Secundum, Halsbury's Laws of England or the doctrinal writings found in the Recueil Dalloz and law commissions such as the American Law Institute. The term "common law" is also often used to mean case law.

--Ben 16:41, 6 July 2006 (UTC)

Oh, I see. I didn't stop to consider that "law handed down by an elected legislative branch" = statutory law and that "common law" = (more or less) case law, thus making it redundant. I apologize for reverting you. But I don't want to see your research go to waste, so somebody should reference that in wikipedia, where relevant. --GunnarRene 11:24, 7 July 2006 (UTC)

Don't worry about it. --Ben 02:52, 10 July 2006 (UTC)

Proposal to merge part of the lead/intro to the background

I think that while the article has improved over time, it has also become somewhat more redundent. I would suggest that we take the following of the lead/intro and place it entirely into the background:

Detractors of judicial activism charge that judicial activism represents a usurption of the legislative powers of the legislature or, to the contrary, the abdication of the proper role of the courts. A path which, critics argue, leads to the demise of the rule of law and democracy.

Those who assert the former point of view argue that the judicial branch, which is often unelected, has no legitmate grounds for overruling the policy choices of a duly elected branch of government. Others, critical of this perspective, note that many cases of "judicial activism" are actually a matter of judicial review. In particular, defenders argue that the courts are required to uphold the Constitution and to strike down any law passed by a legislature that violates the Constitution. Critics also note that judge-nominees are more thoroughly investigated by Congress and the President than any other official, pointing to the extensive nomination process undergone by nominees to senior position. They add that the founding Fathers deliberately isolated the judiciary from the casual passions that grip the electorate, and from the general popular ignorance of Constitutional rights and procedures.

Those who define judicial activism as the latter, as the abdiction of the courts responsibilities, assert that it is the duty of the courts to protect minority rights and to uphold the laws of the land, notwithstanding the political sentiments of the day. Democracy, they argue, is far more than just majority rule. Critics of this perspective retort that democracy nor the rule of law can exist when the law is merely what a judge says it is. In other words, they argue that there has to be limits on the discretion of judges to interpret the law and, in particular, the courts must not interpret the law beyond the intentions of its framers or of the legislature. Otherwise, there is no distinction between the law, as it is, and the moral and political predilictions of unelected judges.

I find that the background, more or less, states the same thing. --Ben 11:48, 17 July 2006 (UTC)

Removing neutrality dispute banner?

It does not appear like any dialogue has occured since the neutrality of the article was redisputed. If the article is going to be written from a more neutral point of view, the input of those contesting its neutrality is going to be vital. If such input is not made available, I feel that the dispute should be rescinded shortly. --Ben 20:33, 19 July 2006 (UTC)

I don't know. Right now, there's a section in there entitled "Another view..." and it makes it look like there's some bulk in the argument against conservative opinions about judicial activism. But it smacks of original research. Take it away and you have: a sub-section where conservatives frame the issue, two stub sub-sections about liberal attempts to create a competing definition, a fourth stub sub-section about the conservative rebuttal, a section where each side gets to characterize the other as intrinsically flawed, and some assorted cases, quotations, and cross-references. If that constitutes a neutral point of view...

And in the introduction and first two sections, the abundance of references to indeterminate groups -- mashing-together of liberal and conservative J.A. partisans on one side, verus J.A. skeptics of both political persuasions -- makes it hard to follow, while solving the first-order problem of not giving the article away to conservative partisans, liberal partisans, or skeptics.

Johndodd 04:42, 25 July 2006 (UTC)

I agree. It is very badly structured. Make the necessary changes and we'll deal with the consequences if and when it comes to that. --Ben 11:59, 25 July 2006 (UTC)

This is not the first "alternative view" section that this author has added to articles. See Talk:Fourth Amendment to the United States Constitution#NPOV. Uncle G 13:30, 5 August 2006 (UTC)

Original research is not helpful

The present section entitled "An alternative view of judicial activism" was added, reverted, put back in, edited and reverted around in the last week. I've tagged it as possibly original research, and unless somebody steps up to claim it and cite sources, I'm going to take it back out. Johndodd 04:47, 25 July 2006 (UTC)

I just took a look at the section you flagged and I must, yet again, completely agree. It must be removed. --Ben 12:05, 25 July 2006 (UTC)

Intro Rewrite?

I think the introduction needs to be either rewritten or simplified. I understand that it is going into detail on the definition, but it just seems too long and redundant for an intro. Perhaps some of the detailed information could be put in a separate section, with the intro just being left to a simplified summary? TheSlyFox 09:56, 30 October 2006 (UTC)

The introduction could definetly be split with the background . . . they both need to be synchronized.Ben 15:01, 30 October 2006 (UTC)

Granting of corporate "personhood"

Is "judicial activism" the same as "judge made law"? Because the infamous US Supreme Court ruling of 1886 Santa Clara County v. Southern Pacific Railroad that gave corporations legal personhood certainly was judge made law. If so, why is this not a part of the article? (Blok-blok) 16:03, 5 December 2006 (UTC).

Markman

I disagree with the recent deletion of material about Stephen Markman. It is true that Markman's article did not use the precise term "judicial activism." But that does not make what he said irrelevant. According to the present version of the article, "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...." That is precisely the subject that Markman was addressing: "Senators may wish to examine the prior opinions of nominees in order to assess their propensity for employing devices like the following, with the purpose of replacing the policy choices of the lawmaker with those of the judge."

More generally, I don't think it's appropriate to delete relevant statements merely because the statements do not expressly mention the word "judicial activism." That's like deeming statements about "milk and cheese" irrelevant to a Wikipedia article about dairy products, merely because the statements don't explicitly use the term "dairy product."Ferrylodge 22:10, 25 January 2007 (UTC)

External Links

I have taken the liberty of removing the link to Real Women of Canada: Curbing the Power of the Supreme Court of Canada

My reasons: The page in question contains numerous factual errors and distortions. Simply, it is unreliable propoganda; it is not a practical or informative resource. Furthermore, it is unclear whether the page in question is even relevant to the topic, which is judicial activism (which is not synonamous with general court bashing). The page in question also does not purport to address the concept (i.e. what is judicial activism, why is it bad, what are examples). The only thing this page does is present a series of objectives to reduce the power of the judiciary in Canada. If the point of view of certain conservatives in Canada must be presented in this article, they should be stated in the article with an alternative or conflicting point of view.

For those concerned with this edit, please see What should be linked

Also see 2 AND 13 OF Links normally to be avoided Ben 03:24, 13 February 2007 (UTC)

Scope?

Evidently, this is entirely concerned with US notions of "judicial activism". Should this be 'globalised', starting by merging in judicial activism in Canada? Or should it be renamed to judicial activism in the United States? Alai 00:49, 31 July 2007 (UTC)

This page promotes an incorrect view of the word

Liberals have been trying to pretend that "judicial activism" means "judicial review" for some time now. That's just not how the word is used by normal speakers of English. It does not mean the practice of "ruling against a preferred interpretation" as the obviously liberal Strauss puts it, but doing what to any reasonable person would consider reading things into the constitution that are not there. Roe v. Wade is the archetypal activist decision because a right to abort your unborn baby is not even remotely in the constitution. Those who think it ought to be, and imagine they see it are called activists. That's what the word means, and it's dismaying to see that the writers on Wikipedia collude with these activists to continue to obfuscate the word.Amulekii

Apparently, some have not read the writings of some conservatives that endorse the alleged "liberal"-driven definition of judicial activism as judicial review (see especially Ted Morton's The Charter Revolution and Court Party.) Unfortunately, I'm not sure what Amulekii is referring to when he speaks of some sort of collusion to obsfuscate the term. The current articles states: "Judicial activism is a term used by political commentators to describe a tendency by judges to consider outcomes, attitudinal preferences, and other public policy issues in interpreting applicable existing law." I agree with Amulekii that this definition is problematic. Considering outcomes, attitudinal preferences, etc., in interpreting applicable existing laws is what courts have always done; giving those items weight in any interpretation is quite a different thing, however. I've argued before that if either definition is correct, the term is essentially useless. Arguably, we are all biased and influenced by these things whether we are aware of such influences or not. The article suggests that the term has a concrete, universal meaning. Evidently, the failure of any contributor here to identify such a meaning and the authority that defines it, beyond political Ipsedixitism by activists themselves (e.g. conservatives such as Amulekii perhaps), seems to demonstrate otherwise. The article would be far more useful if it acknowledged that it is merely a loaded term with no universal definition, outlining the various perspectives and so on. Ben 05:45, 13 November 2007 (UTC)

Multiple issues

I am working to fix the issues one by one; I am removing tags as I do so. Bearian (talk) 19:09, 17 March 2009 (UTC)

Only the USA?

This article strikes me as rather US centric... Could it not be expanded to include non-USA examples of judicial activism? This debate rages on in Canada, Europe, West Africa, South America, etc. —Preceding unsigned comment added by 64.229.56.241 (talk) 03:44, 23 March 2009 (UTC)

Agreed. Most prominent recent example of judicial activism has been the constitutional crisis caused by Pakistan's Chief Justice Iftikhar Muhammad Chaudhry's defiance towards military rule which culminated in the end of military rule and restoration of democracy and ultimately reinstatement of Chaudhry himself. This issue, which shook the very roots of Pakistan's populace and politics, and made its vibrations felt through out the high offices of the world, has been summarily ignored in this article. Wikipedia's situation seems pitiful when its articles appear to be talking to US suburbs only. —Preceding unsigned comment added by 70.53.39.58 (talk) 22:55, 2 May 2009 (UTC)

Complete rewrite needed

It seems to me that a complete rewrite of this article is needed. As it stands, the article fails to provide any evidence for a key claim of its introduction - that judicial activism is actually a school of thought. Indeed, every use of the term documented in the article is being used to criticize someone else's approach. Nobody seems to identify as a judicial activist. No body of judicial activist legal theory is presented.

Indeed, the article seems to me to support only the claim that "judicial activism" is a term of criticism, rather than an actual philosophy that anybody adheres to, and that the article needs to be recast to describe it as a line of criticism rather than as a philosophy. Right now, the article is a coatrack - it pretends to discuss a philosophy before devoting itself entirely to criticisms of liberal judicial philosophy. Unless some actual exposition of this so-called philosophy can be crafted - i.e. a perspective in favor of it can actually be mustered - this article is a hopelessly POV coatrack that should be reduced to a stub. 98.180.9.209 (talk) 20:30, 3 June 2009 (UTC)

I have rewritten the introduction to reflect the seeming fact that nobody actually identifies as a judicial activist, removed the quote farm (the overwhelming majority of which does not even use the term "judicial activism," and removed the list of cases, as it was uncited and seemed to me POV pushing. The article is still bad, but it is better without these particular lodestones. 98.180.9.209 (talk) 19:27, 5 June 2009 (UTC)

Rewrite and expert tags

No offense to the number of editors who have made noble and good-faith efforts at trying to tackle this complex and controversial subject, but, as I discuss above, the whole thing needs to be rewritten. Unfortunately I don't have time, so I'm simply adding a tag and listing the problems here. There's no acknowledgement that there's an intellectually coherent theory of judicial activism; the opening-paragraph claim "Because there is no consensus or legal definition for what constitutes proper jurisprudence and what does not, there is no practical means of differentiating between judicial activism and otherwise appropriate judgement" is a non sequitur; there's no distinction between the academic and political uses of the term; there's no discussion of the fact that the "indeterminacy" claim is a distinctly Left position; the criticism of the Sunstein redefinition was deleted, creating additional POV problems; the international stuff is added haphazardly; there should be a discussion of regulation through litigation; the current organization, even within sections, isn't readable and doesn't flow; the "see also"s are littered with irrelevancies (sua sponte?!). It's not meant as an insult that I believe that this article is so problematic as it currently stands; there are academics, such as Sunstein, who are actively trying to confuse the issue. The University of Colorado Law School did a symposium on the subject a couple of years ago, which was published in their law review; that's probably a good place to start thinking about the competing views, as well as Sunstein's "Radicals in Robes" and the criticisms of that book. -- FRCP11 04:40, 4 October 2005 (UTC)

Furthermore, the new high school Lincoln-Douglas debate topic deals with judicial activism ,adn as the page stands now, it is not a vlid resource for debate students who need reliable sources for a definition and an explanation of what judicial activism IS.

PS -- I don't know how to do indents, so if somebody wants to edit this and indent my response, I give such permission.

--Unregistered

Dear FRCP, (the "CP" undoubtedly standing for "Communist Party", and the FR for "French")

I agree with most of what you've written here. I respect you for standing up against liberal obfustication on this issue (that being said, we all know that theoretical left-liberalism is dead, and especially that theoretical judicial liberalism is dead, so there is no real dispute here). One interesting direction this article could take is listing all of the Justices stating their own commitment to judicial restraint. Justice Stevens has explicitly averred his belief in judicial restraint in opinions several times; Justice Ginsburg has done so in her off-the-Court writings; Breyer does so in his writings as well (pledging a commitment to some form of Ely's "Democracy and Distrust" theory); Souter explicitly acknowledged his commitment to judicial restraint in his opinions in Washington v. Glucksberg ("We therefore have a clear question about which institution, a legislature or a court, is relatively more competent to deal with an emerging issue as to which facts currently unknown could be dispositive. The answer has to be, for the reasons already stated, that the legislative process is to be preferred.") and Smith v. Doe (" What tips the scale for me is the presumption of constitutionality normally accorded a State’s law."). The only justice I know of who explicitly defended judicial activism was Justice Harry Blackmun in his later years (see his dissent in DeShaney v. Winnebago County, for example), and this was only after he become single-mindedly committed to Roe v. Wade (in his earlier years, of course, he explicitly disavowed judicial activism, see his dissentign opinion in Furman v. Georgia).

But I must take issue with what you wrote on my anon. talk page. I had no idea of the rule that comments must be placed at the bottom of the page. I'm too busy to read through all of this discussion anyways. And how dare you suggest I should be held to some type of moral standard, and be bound by the rules that bind others? I am not an automaton (as much as I may seem so on the computer), I correspond to an actual human being . An anyways any type of morals-based thinking is a form of slavery, as Nietzsche has shown. So don't explain to me what I 'should' do (I'm being facetious here, don't take offense).

And furthermore I think no one should have a username; it makes it more difficult to edit and easier to get blocked arbitrarily. Unfair criticism and anger, inevitable in any major editing, will stick to the userpage and can't be unstuck because of the royal perogatives of the admins, who must paternalistically preserve everyone's talk page. I might as well be anonymous by going with an IP address as opposed to some concocted username.

--Anonymous

Starting from Scratch

I'm a law student. I would not consider myself an expert in jurisprudence by any stretch.

That said, I think any discussion of judicial activism should start with two premises: At a superficial level, simply describing the political phenomenon (epithet?) in positivistic terms -- where the term originated, what conservatives take liberal judicial activism to be, and what liberals take conservative judicial activism to be and why it's a more-or-less American phenomenon because we have historical ties to the Common Law (unlike many countries that have adopted Judicial Review), Judicial Review (unlike parliamentary Common Law jurisdictions) and no common theory of Statutory Interpretation (unlike the Canada, which is one of a few parliamentary Common Law jurisdictions with Judicial Review). Then, at a deeper level to untangle how perceptions of judicial activism are related to the competing theories of statutory interpretation in the United States (i.e. textualism, specific legislative intent, and legislative purpose).

I don't know. Maybe that's a skeptical or non-cognitivist Point of View about Judicial Activism... but I figure if we stick to the phenomenon and its relationship to the unsettled state of statutory interpretation (and its manipulation by political partisans), we avoid the worse POV problem of trying to normatively say what in the annals of jurisprudence is or isn't activist. Because what is or isn't activist, once you get past party affiliation, is whatever doesn't conform to The One True Theory of statutory interpretation (i.e., whichever you don't identify with).

P.S., At least according to the Internet, I'm Fed. R. Civ. P. number 8.

Johndodd 03:18, 1 February 2006 (UTC)

This sounds like the most objective take present. One cannot take what is inherently a subjective term and try to determine which previous actions universally fall under it. Judicial activism, at least as bandied about in the US, no matter how much legalese one wraps around it, essentially boils down to "judicial decisions I don't agree with". Addressing the phenomenon in an objective sense means having to honestly admit there are a vast array of differing definitions, and that no one can be selected as THE definition. One must simply put them out there, and then go on to discuss how they impact the process. The bitter partisan rancor, no matter how veiled, seems to have imbedded itself so deeply in some of the commenters here that they have come to be simply unable to admit that their specific use of the term (and the propaganda benefits it entails) are not the sum and subject of the meanings of the word. It's blind ignorance at best, and being cowardly disingenuous at worst. The above poster has the right take on it. I suggest we put it into action. —Preceding unsigned comment added by 204.65.34.47 (talk) 19:59, 23 April 2010 (UTC)

Talk page archiving

I'm considering setting up automated talk page archiving for this page unless there's objection otherwise. Would probably use User:MiszaBot (which I use on my own talk page) unless others prefer ClueBot. The suggested guideline at Help:Archiving a talk page is 50k or over 10 topics. This talk page is about 100k and has about 40 topics. I'll wait for a few days, and if there're no objections, implement it. Shadowjams (talk) 16:08, 20 February 2010 (UTC)

Done. So long as I got the config right, it should start working within the next 24 hours. Shadowjams (talk) 08:27, 27 April 2010 (UTC)

Examples section

The examples section has had major problems from its genesis, and yet remains unsourced and problematic. Being generous, it's entirely uncited original research. Being less generous, it has issues of NPOV as well as representing an expansive definition of "judicial activism". Just extrapolating from the examples, most controversial cases are considered "judicial activism" by that metric, without any regard for how clear the law was at the time. These reasons are exactly why we have a WP:OR policy. On top of that, it's almost trivia-like list information.

I'll give the section another few days to add sources and / or be put into a meaningful prose, but if that doesn't happen I'll remove the section for the above reasons. Shadowjams (talk) 08:26, 27 April 2010 (UTC)

I've cleaned up the section, and added a comment. Future additions need to have a cite listed that expressly refers to the decision as judicial activism, or an example of it. Shadowjams (talk) 00:02, 6 May 2010 (UTC)

Judicial Activism in the United Kingdom

There probably should be some discussion of the role of judicial activism in the United Kingdom.

This has been done largely through the expansion of the judicial review, but really, judicial activism is present throughout the legal system in the United Kingdom. The UK is a particularly interesting system because there is no formal constituent, so the judges really only have roles that are defined by their own opinions of how much they are entitled to reform the legal order etc.

I think that any discussion that lacks some reference to the United Kingdom, as the home of the common law, is probably a bit lacking. However, many of the points that apply to the USA will apply equally well to the UK. Judicial activism is essentially a political expression of the judiciaries capacity to deal with the law.

Whilst everyone will disagree about what the proper role of the judiciary in any legal system is, I think this page should mainly focus on the development, or recognized strands of judicial activity. This is largely a legal history question which has many affects for modern cases and law. —Preceding unsigned comment added by Zeusthezealous (talk • contribs) 14:52, 25 May 2010 (UTC)

You should add it. If you do, make sure to add a new section: ==Specific countries== ===United Kingdom=== and use as many references as you can. Shadowjams (talk) 22:30, 25 May 2010 (UTC)