The Federalist Society

What is Judicial Activism?

Articles

  • Don't Be Fooled. They're Activists, Too by Simon Lazarus
    Washington Post - June 3, 2001
    Simon Lazarus argues that judicial activism should be defined by a willingness to strike down laws and regulations.  According to Lazarus, "a new constitutional philosophy has attracted numerous adherents on the political right, including at least three members of the Supreme Court" and that "[t]heir brand of judicial conservatism is avowedly activist."

 

  • "Conservative Judicial Activism": More than Whose Ox is Being Gored by Michael B. Brennan
    Federalist Society Hot Topics - June 2001
    Michael B. Brennan responds to Mr. Lazarus, arguing that "Lazarus confuses proper judicial review with activism."  According to Brennan, "[o]nly in a result-oriented world is finding a law unconstitutional necessarily judicial activism . . . . 'Activism' can be defined as courts that are willing to overstep the bounds of the Constitution, or unquestionably constitutional laws, to impose their will on the other branches of government and the people themselves."

 

  • Federalism, Yes. Activism, No. by Michael S. Greve
    The Federalist Outlook - July 2001
    Michael S. Greve defends some of the "Rehnquist Court's" federalism decisions from charges that they are examples of "activism."  "The Rehnquist Court’s statutory federalism limits the judiciary’s role in the administration of federal entitlement statutes, unless Congress has unmistakably provided for such a role. Whatever the merits of that jurisprudence . . . it cannot be described as 'activist.' For true activism, one must look to the entitlement jurisprudence that the Rehnquist Court has effectively dismantled—Justice William Brennan’s."

 

  • Verdict on the Supremes by Thomas J. Miles and Cass R. Sunstein
    Los Angeles Times - October 22, 2007
    Thomas Miles and Cass Sunstein create a methodology for determining whether a particular United States Supreme Court Justice is “restrained” or “activist,” “neutral” or “partisan.”  According to their rubric, Justice Anthony Kennedy is the most “neutral,” while Justice Clarence Thomas is the most “partisan.”  The authors then identify Justice Stephen Breyer as the Court’s most “restrained” jurist and Justice Antonin Scalia as the Supreme Court’s most “activist” member.

 

  • Judcial Activism Awards Fixed! by Edward Whelan
    Los Angeles Times - October 24, 2007
    Ed Whelan responds to the Miles and Sunstein article, questioning the authors’ decision to structure their methodology on federal administrative agency cases rather than “high-profile constitutional rulings,” where the former are made by unaccountable bureaucrats, not representatives of the American people.   According to Whelan, both a variable timeframe and lack of qualitative judgments further undermine the authors’ attempt to methodologize the Supreme Court’s decision-making.

 

  • A Hand in the Matter by Cass R. Sunstein
    Legal Affairs - March/April 2003
    Examining six jurisprudential topics, including affirmative action, state sovereign immunity, and standing, author, and current Administrator of the White House Office of Information and Regulatory Affairs, Cass Sunstein argues that the Rehnquist Court was "enthusiastically committed to judicial activism" because it was "exceedingly willing to strike down congressional (and also state) enactments".

 

  • Upholding the Law by Orin S. Kerr
    Legal Affairs - March/April 2003
    Orin Kerr disagrees with Sunstein's definition of judicial activism and his charge that the Rehnquist Court was activist.  According to Kerr, "using judicial invalidation as a proxy for activism suffers from an obvious flaw: If a legislature passes a plainly unconstitutional law, striking down the statute by applying established precedents reflects neither separation-of-powers activism nor precedent activism."  Instead, Kerr argues, judicial activism is properly described as “a confidence in judicial solutions to legal problems and relative scorn toward the handiwork of the executive and legislative branches".

 

Videos

Ed Whelan and Neomi Rao discuss Judicial Activism

 

Al Franken on "Conservative Judicial Activism"
Interview by TheUpake.org - July 17, 2009

 

Sen. Feinstein Lays Out Examples of Conservative Judicial Activism
Opening Statements at the Sotomayor Confirmation Hearing - July 13, 2009

 

Dr. Robert P. George on Unconstitutional Judicial Activism
Video by American Principles in Action - August 5, 2009

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