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Judicial activism?

Lansing, MI |

Why is this legal? I am reading about it for a class, and the more I read the more I question why it is ok for a judge to use judicial activism. I understand how it could be good, but if the decisions go against the Constitution, why is it allowed? I guess I'm more looking for opinions or your insights about it.

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Attorney answers 2


Ultimately, "Judicial Activism" is a buzzword, subjective, and like beauty, in the eye of the beholder. Judges are supposed to use restraint in interpreting or changing the law, and respecting established rulings and principles. However, often must make decisions in grey areas. "Judicial activism" is usually a charge hurled at judges when they "stretch" precedent to get to a policy result they prefer, particularly when they are aligned strongly with the political party that appointed them.

In the 60s and 70s, judges were accused of liberal "judicial activism" where they found the constitution required schools be desegregated, the death penalty unconstitutional, abortions could not be prohibited by the state or criminals be given the right to counsel, although this required an interpretation of the constitution which was not clearly spelled out.

Today, the pendulum has swung in the opposite direction. Corporations are determined to be "persons" with the right to "free speech" and unlimited spending in elections, although the constitution doesn't actually say that. Have you ever wondered why most Supreme Court decisions are decided by 5-4 votes? Is the majority always engaging in "judicial activism" where it is clear the court is very split on basic constitutional issues?

Probably, we'd see less "judicial activism" if our political system was less polarized and more moderate. But until that day comes, we can expect to see our courts behave like political institutions.

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Great answer, thank you so much Mr. Lebowitz!

Jack Richard Lebowitz

Jack Richard Lebowitz


You are welcome. Thanks for being interested in this very important issue and looking behind the buzzwords for the deeper truth.


Mr. Lebowitz gives a very eloquent answer and I wholly agree with him. I would add that when a judge has tenure and cannot be fired (except for impeachment, which is extremely difficult), s/he has leeway to rationalize decisions without consequence. Of course, when five justices of the U.S. Supreme Court decide a case that is considered an affront to the Constitution, such as the Citizens United case, how do you impeach all five? Oftentimes, no matter how absurd the outcome of a case, the fact that it is ratified by a majority of the judges (or justices, in the case of the Supreme Court) gives it legitimacy. This may be different at an appellate level, where only one judge may be deciding the case.

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