Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is sometimes used as an antonym of
judicial restraint
Judicial restraint is a judicial interpretation that recommends favoring the status quo in judicial activities; it is the opposite of judicial activism. Aspects of judicial restraint include the principle of stare decisis (that new decisions shou ...
.
The term usually implies that judges make rulings based on their own views rather than on
precedent
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
. The definition of judicial activism and the specific decisions that are activist are controversial political issues. The question of judicial activism is closely related to
judicial interpretation,
statutory interpretation
Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is often necessary when a case involves a statute. Sometimes the words of a statute have a plain and a straightforward meani ...
, and
separation of powers
Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typic ...
.
Etymology
Arthur Schlesinger Jr.
Arthur Meier Schlesinger Jr. (; born Arthur Bancroft Schlesinger; October 15, 1917 – February 28, 2007) was an American historian, social critic, and public intellectual. The son of the influential historian Arthur M. Schlesinger Sr. and a spe ...
introduced the term "judicial activism" in a January 1947
''Fortune'' magazine article titled "The Supreme Court: 1947".
The phrase has been controversial since its beginning. An article by Craig Green, "An Intellectual History of Judicial Activism," is critical of Schlesinger's use of the term; "Schlesinger's original introduction of judicial activism was doubly blurred: not only did he fail to explain what counts as activism, he also declined to say whether activism is good or bad."
Even before this phrase was first used, the general concept already existed. For example,
Thomas Jefferson
Thomas Jefferson (April 13, 1743 – July 4, 1826) was an American statesman, diplomat, lawyer, architect, philosopher, and Founding Fathers of the United States, Founding Father who served as the third president of the United States from 18 ...
referred to the "despotic behaviour" of
Federalist
The term ''federalist'' describes several political beliefs around the world. It may also refer to the concept of parties, whose members or supporters called themselves ''Federalists''.
History Europe federation
In Europe, proponents of de ...
federal judges, in particular Chief Justice
John Marshall
John Marshall (September 24, 1755July 6, 1835) was an American politician and lawyer who served as the fourth Chief Justice of the United States from 1801 until his death in 1835. He remains the longest-serving chief justice and fourth-longes ...
.
Definitions
A survey of judicial review in practice during the last three decades shows that judicial activism has characterized the decisions of the Supreme Court at different times.
''
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."
Political science professor Bradley Canon has posited six dimensions along which judge courts may be perceived as activist: majoritarianism, interpretive stability, interpretive fidelity, substance/democratic process, specificity of policy, and availability of an alternate policymaker.
David A. Strauss has argued that judicial activism can be narrowly defined as one or more of three possible actions: overturning laws as unconstitutional, overturning
judicial precedent
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great value ...
, and ruling against a preferred interpretation of the constitution.
Others have been less confident of the term's meaning, finding it instead to be little more than a rhetorical shorthand.
Kermit Roosevelt III
Kermit Roosevelt III (born July 14, 1971) is an American author, lawyer, and legal scholar. He is a law professor at the University of Pennsylvania. He is a great-great-grandson of United States President Theodore Roosevelt and a distant cous ...
has argued that "in practice 'activist' turns out to be little more than a rhetorically charged shorthand for decisions the speaker disagrees with". Roosevelt defines judicial activism as "an approach to the exercise of judicial review, or a description of a particular judicial decision, in which a judge is generally considered more willing to decide constitutional issues and to invalidate legislative or executive actions.";
[Kermit Roosevelt, III, ''The Myth of Judicial Activism: Making Sense of Supreme Court Decisions'', Yale University Press, 2008, , .] likewise, the
solicitor general under
George W. Bush
George Walker Bush (born July 6, 1946) is an American politician who served as the 43rd president of the United States from 2001 to 2009. A member of the Republican Party, Bush family, and son of the 41st president George H. W. Bush, he ...
,
Theodore Olson
Theodore Bevry Olson (born September 11, 1940) is an American lawyer, practicing at the Washington, D.C., office of Gibson, Dunn & Crutcher. Olson served as United States Assistant Attorney General of the Office of Legal Counsel (1981–1984) ...
, said in an interview on ''
Fox News Sunday
''Fox News Sunday'' is a Sunday morning talk show that has aired on the broadcast Fox network since 1996, as a presentation of Fox News Channel. It is the only regularly scheduled Fox News program carried on the main Fox broadcast network. Ho ...
'', with regard to
a case for same-sex marriage he had successfully litigated, that "most people use the term 'judicial activism' to explain decisions that they don't like." Supreme Court Justice
Anthony Kennedy
Anthony McLeod Kennedy (born July 23, 1936) is an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1988 until his retirement in 2018. He was nominated to the court in 1987 by Presid ...
said that, "An activist court is a court that makes a decision you don't like."
[Frederick P. Lewis, ''The context of judicial activism: the endurance of the Warren Court legacy in a conservative age'', Rowman & Littlefield: 1999, ]
Echoed sentiments in many articles, such as "The courts have gradually abandoned their proper role of policing the structural limits on government and neutrally interpreting the laws and constitutional provisions without personal bias."
Richard H. Fallon Jr. quotes Justice Holmes "great cases... make bad law." in their explanation on presidential overreach. "Presidents frequently interpret their own powers without judicial review and where executive precedents play a large role in subsequent interpretive debates, some of the historical assertions of presidential authority that stretch constitutional and statutory language the furthest seem hard to condemn in light of the practical stakes."
Debate
Detractors of judicial activism charge that it usurps the power of the elected branches of government and of legislatively created agencies, damaging the rule of law and democracy. Defenders of judicial activism say that in many cases it is a legitimate form of
judicial review
Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompat ...
and that the interpretation of the law must change with changing times.
A third view is that so-called "objective" or
"formalist" interpretation of the law does not exist. According to law professor Brian Z. Tamanaha, "Throughout the so-called formalist age, it turns out, many prominent judges and jurists acknowledged that there were gaps and uncertainties in the law and that judges must sometimes make choices."
Under this view, any judge's use of
judicial discretion Judicial discretion is the power of the judiciary to make some legal decisions according to their discretion. Under the doctrine of the separation of powers, the ability of judges to exercise discretion is an aspect of judicial independence. Where ...
will necessarily be shaped by that judge's personal and professional experience and his or her views on a wide range of matters, from legal and juridical philosophy to morals and ethics. This implies a tension between granting flexibility (to enable the dispensing of justice) and placing bounds on that flexibility (to hold judges to ruling from legal grounds rather than extralegal ones).
Some proponents of a stronger judiciary argue that the judiciary helps provide checks and balances and should grant itself an expanded role to counterbalance the effects of transient
majoritarianism, i.e., there should be an increase in the powers of a branch of government that is not directly subject to the electorate, so that the majority cannot dominate or oppress any particular minority through its elective powers. Other scholars have proposed that judicial activism is most appropriate when it restrains the tendency of democratic majorities to act out of passion and prejudice rather than after reasoned deliberation.
Moreover, they argue that the judiciary strikes down actions of both elected and unelected officials, in some instances acts of legislative bodies reflecting the view the transient majority may have had at the moment of passage and not necessarily the view the transient majority may have at the time the legislation is struck down. Also, the judges that are appointed are usually appointed by previously elected executive officials so that judges' philosophy should reflect that of those who nominated them, and that an independent judiciary is a great asset to civil society since special interests are unable to dictate their version of constitutional interpretation with the threat of stopping political donations.
United States examples
The following rulings have been characterized as judicial activism.
* ''
Brown v. Board of Education
''Brown v. Board of Education of Topeka'', 347 U.S. 483 (1954), was a landmark decision by the U.S. Supreme Court, which ruled that U.S. state laws establishing racial segregation in public schools are unconstitutional, even if the segrega ...
'' – 1954 Supreme Court ruling ordering the
desegregation
Desegregation is the process of ending the separation of two groups, usually referring to races. Desegregation is typically measured by the index of dissimilarity, allowing researchers to determine whether desegregation efforts are having impact o ...
of public schools.
* ''
Roe v. Wade
''Roe v. Wade'', 410 U.S. 113 (1973),. was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States conferred the right to have an abortion. The decision struck down many federal and s ...
'' – 1973 Supreme Court ruling creating the constitutional right to an abortion.
* ''
Bush v. Gore
''Bush v. Gore'', 531 U.S. 98 (2000), was a landmark decision of the United States Supreme Court on December 12, 2000, that settled a recount dispute in Florida's 2000 presidential election between George W. Bush and Al Gore. On December 8, th ...
'' – The
United States Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
case between the major-party candidates in the
2000 presidential election,
George W. Bush
George Walker Bush (born July 6, 1946) is an American politician who served as the 43rd president of the United States from 2001 to 2009. A member of the Republican Party, Bush family, and son of the 41st president George H. W. Bush, he ...
and
Al Gore
Albert Arnold Gore Jr. (born March 31, 1948) is an American politician, businessman, and environmentalist who served as the 45th vice president of the United States from 1993 to 2001 under President Bill Clinton. Gore was the Democratic Part ...
. The justices voted 5–4 to halt the
recount of ballots in Florida and as a result Bush was chosen as president.
* ''
Kitzmiller v. Dover Area School District
''Kitzmiller v. Dover Area School District'', 400 F. Supp. 2d 707 (M.D. Pa. 2005) was the first direct challenge brought in the United States federal courts testing a public school district policy that required the teaching of intelligent design ...
'' – 2005 Supreme Court decision declaring that
intelligent design
Intelligent design (ID) is a pseudoscientific argument for the existence of God, presented by its proponents as "an evidence-based scientific theory about life's origins". Numbers 2006, p. 373; " Dcaptured headlines for its bold attempt to ...
is not science.
* ''
Citizens United v. Federal Election Commission'' – 2010 Supreme Court decision declaring congressionally enacted limitations on
corporate political spending
Corporate personhood or juridical personality is the legal notion that a juridical person such as a corporation, separately from its associated human beings (like owners, managers, or employees), has at least some of the legal rights and respons ...
and transparency as unconstitutional restrictions on free speech.
* ''
Obergefell v. Hodges
''Obergefell v. Hodges'', ( ), is a landmark LGBT rights case in which the Supreme Court of the United States ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protect ...
'' – 2015 Supreme Court decision declaring same-sex marriage as a right guaranteed under the
Due Process Clause
In United States constitutional law, a Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibits arbitrary deprivation of "life, liberty, or property" by the government except as ...
and the
Fourteenth Amendment.
*''
Janus v. AFSCME'' – a 2018 Supreme Court decision addressing whether unions can require dues from all workers who benefit from collective bargaining agreements. The decision overturned the 41-year-old precedent of ''
Abood v. Detroit Board of Education
''Abood v. Detroit Board of Education'', 431 U.S. 209 (1977), was a US labor law case where the United States Supreme Court upheld the maintaining of a union shop in a public workplace. Public school teachers in Detroit had sought to overturn the ...
''.
*''
'' – a 2020 Supreme Court decision addressing whether the Department of Homeland Security under President
Donald Trump
Donald John Trump (born June 14, 1946) is an American politician, media personality, and businessman who served as the 45th president of the United States from 2017 to 2021.
Trump graduated from the Wharton School of the University of Pe ...
had the authority to dismantle the
Deferred Action for Childhood Arrivals
Deferred Action for Childhood Arrivals, colloquially referred to as DACA, is a United States immigration policy that allows some individuals with unlawful presence in the United States after being brought to the country as children to receive ...
program initiated by Executive Order under former President
Barack Obama
Barack Hussein Obama II ( ; born August 4, 1961) is an American politician who served as the 44th president of the United States from 2009 to 2017. A member of the Democratic Party, Obama was the first African-American president of the U ...
.
Some US Presidents have also commented on the idea. When President
George W. Bush
George Walker Bush (born July 6, 1946) is an American politician who served as the 43rd president of the United States from 2001 to 2009. A member of the Republican Party, Bush family, and son of the 41st president George H. W. Bush, he ...
announced his first nominations for the federal bench, he declared:
Outside the United States
While the term was first coined and is often used in the United States, it has also been applied in other countries, particularly
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
jurisdictions.
India
India has a recent history of judicial activism, originating after
the Emergency in India which saw attempts by the Government to
control the judiciary. Public Interest Litigation The chief instrument through which judicial activism has flourished in India is public interest litigation (PIL) or social action litigation (SAL). ''Public interest litigation'' (PIL) refers to litigation undertaken to secure public interest and de ...
was thus an instrument devised by the courts to reach out directly to the public, and take
cognizance
Cognizance may refer to:
* Cognizance IIT Roorkee, an annual technical festival held at Indian Institute of Technology Roorkee
* Cognizance, a heraldic badge, emblem, or device formerly worn by retainers of a royal or noble house
* Cognizance (l ...
though the litigant may not be the victim.
"Suo motu" cognizance allows the courts to take up such cases on its own. The trend has been supported as well criticized. New York Times author
Gardiner Harris sums this up as
All such rulings carry the force of Article 39A of the
Constitution of India
The Constitution of India (IAST: ) is the supreme law of India. The document lays down the framework that demarcates fundamental political code, structure, procedures, powers, and duties of government institutions and sets out fundamental ri ...
,
although before and during the Emergency the judiciary desisted from "wide and elastic" interpretations, termed
Austinian, because
Directive Principles of State Policy are non-justiciable. This despite the constitutional provisions for
judicial review
Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompat ...
and
B R Ambedkar
Bhimrao Ramji Ambedkar (14 April 1891 – 6 December 1956) was an Indian jurist, economist, social reformer and political leader who headed the committee drafting the Constitution of India from the Constituent Assembly debates, served ...
arguing in the Constituent Assembly Debates that "judicial review, particularly writ jurisdiction, could provide quick relief against abridgment of Fundamental Rights and ought to be at the heart of the Constitution."
Fundamental Rights
Fundamental rights are a group of rights that have been recognized by a high degree of protection from encroachment. These rights are specifically identified in a constitution, or have been found under due process of law. The United Nations' Sustai ...
as enshrined in the Constitution have been subjected to wide review, and have now been said to encompass a
right to privacy
The right to privacy is an element of various legal traditions that intends to restrain governmental and private actions that threaten the privacy of individuals. Over 150 national constitutions mention the right to privacy. On 10 December 1948 ...
, right to livelihood and right to education, among others. The
'basic structure' of the Constitution has been mandated by the
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
not to be alterable, notwithstanding the powers of the Legislature under
Article 368.
This doctrine has been recognized by several countries like
Bangladesh
Bangladesh (}, ), officially the People's Republic of Bangladesh, is a country in South Asia. It is the eighth-most populous country in the world, with a population exceeding 165 million people in an area of . Bangladesh is among the mos ...
,
Pakistan
Pakistan ( ur, ), officially the Islamic Republic of Pakistan ( ur, , label=none), is a country in South Asia. It is the world's List of countries and dependencies by population, fifth-most populous country, with a population of almost 24 ...
and
Malaysia
Malaysia ( ; ) is a country in Southeast Asia. The federation, federal constitutional monarchy consists of States and federal territories of Malaysia, thirteen states and three federal territories, separated by the South China Sea into two r ...
as part of their
jurisprudence
Jurisprudence, or legal theory, is the theoretical study of the propriety of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and they also seek to achieve a deeper understanding of legal reasoning a ...
. Other countries such as
Singapore
Singapore (), officially the Republic of Singapore, is a sovereign island country and city-state in maritime Southeast Asia. It lies about one degree of latitude () north of the equator, off the southern tip of the Malay Peninsula, borde ...
,
Belize
Belize (; bzj, Bileez) is a Caribbean and Central American country on the northeastern coast of Central America. It is bordered by Mexico to the north, the Caribbean Sea to the east, and Guatemala to the west and south. It also shares a wate ...
and
Uganda
}), is a landlocked country in East Africa
East Africa, Eastern Africa, or East of Africa, is the eastern subregion of the African continent. In the United Nations Statistics Division scheme of geographic regions, 10-11-(16*) territor ...
has heard important cases regarding the use of this doctrine in their own countries.
Recent examples quoted include the order to
Delhi Government
The Government of Delhi, officially the Government of the National Capital Territory of Delhi (GNCTD) is the governing body of the Union Territory of Delhi, whose urban area is the seat of the Government of India. It also governs the city or l ...
to convert the
Auto rickshaw
An auto rickshaw is a motorized version of the pulled rickshaw or cycle rickshaw. Most have three wheels and do not tilt. They are known by many terms in various countries including auto, auto rickshaw, baby taxi, mototaxi, pigeon, jonnybee, bajaj ...
to CNG,
[ a move believed to have reduced Delhi's erstwhile acute smog problem (it is now argued to be back) and contrasted with that of Beijing.
]
Israel
The Israeli approach to judicial activism has transformed significantly in the last three decades, and currently presents an especially broad version of robust judicial review and intervention. Additionally, taking into consideration the intensity of public life in Israel and the challenges that the country faces (including security threats), the case law of the Israeli Supreme Court
The Supreme Court (, ''Beit HaMishpat HaElyon''; ar, المحكمة العليا) is the Supreme court, highest court in Israel. It has ultimate appellate jurisdiction over all other courts, and in some cases original jurisdiction.
The Supreme C ...
touches on diverse and controversial public matters.
United Kingdom
The British courts were largely deferential towards their attitudes against the government before the 1960s. Since then, judicial activism has been well established throughout the UK. One of the first cases for this activism to be present was the ''Conway v Rimmer'' (1968); a Public-interest immunity Public-interest immunity (PII), previously known as Crown privilege, is a principle of English law, English common law under which the English courts can grant a court order allowing one litigant to refrain from Discovery (law), disclosing evidence ...
, previously known as Crown privilege. Previously, a claim like this would be defined as definitive, but the judges had slowly begun to adopt more of an activist line approach. This had become more prominent in which government actions were overturned by the courts. This can inevitably lead to clashes between the courts against the government as shown in the ''Miller'' case consisting of the 2016 Conservative government. The perceptions of judicial activism derived from the number of applications for judicial review made to the courts, which led to in 2019, joint landmark constitutional law cases on the limits of the power of royal prerogative to prorogue
Prorogation in the Westminster system of government is the action of proroguing, or interrupting, a parliament, or the discontinuance of meetings for a given period of time, without a dissolution of parliament. The term is also used for the period ...
the Parliament of the United Kingdom. This can be seen throughout the 1980s, where there were about 500 applications within a year. This number dramatically increased as by 2013, there were 15,594 applications. This trend has become more frequent as time passes along, possibly pointing to a greater influence in the UK courts against the government. Along with the number of applications submitted to the courts, in some instances it has attracted media attention. For instance, in 1993, William Rees-Mogg had challenged the Conservative government to ratify the Maastricht Treaty
The Treaty on European Union, commonly known as the Maastricht Treaty, is the foundation treaty of the European Union (EU). Concluded in 1992 between the then-twelve member states of the European Communities, it announced "a new stage in the ...
(a legislation that self described as "a new stage in the process of European integration"), which eventually had formed into the European Union and initiated the Eurodollar
Eurodollars are U.S. dollars held in time deposit accounts in banks outside the United States, which thus are not subject to the legal jurisdiction of the U.S. Federal Reserve. Consequently, such deposits are subject to much less regulation than ...
. This was rejected by the Divisional Court and attracted large amounts of media attention to this case. Through these components it is largely evident that judicial activism should not be exaggerated. Ultimately, judicial activism is greatly established throughout the UK as the courts are becoming more prone to scrutinise at their own will, and at times, reject government legislation that they deem to be not within balance to the UK constitution and becoming more visible doing so.
Obviously since the United Kingdom's judiciary powers do not come from electoral methods, they differ in strengths, weaknesses, opportunities, and threats compared to a free and democratic system. Brenda Marjorie Hale, Baroness Hale of Richmond, DBE, PC, FBA, raises the popular concern that this system operates on a fundamentally different playbook to the United States of America's court of law, and personal bias can be inherited, through an 'old boys' club'.
See also
* Bill of rights
A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pri ...
* Constitutional economics
Constitutional economics is a research program in economics and constitutionalism that has been described as explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the choices and activities of econo ...
* Government by Judiciary
''Government by Judiciary'' is a 1977 book by constitutional scholar and law professor Raoul Berger which argues that the U.S. Supreme Court (especially, but not only, the Warren Court) has interpreted the Fourteenth Amendment of the U.S. Co ...
* Impact litigation
* Judicial review
Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompat ...
* Kritarchy
Kritarchy, also called kritocracy, was the system of rule by Biblical judges (, ) in ancient Israel, started by Moses according to the Book of Exodus, before the establishment of a united monarchy under Saul.
Because the name is a compound of the ...
* Letter and spirit of the law
The letter of the law and the spirit of the law are two possible ways to regard rules, or laws. To obey the letter of the law is to follow the literal reading of the words of the law, whereas following the spirit of the law means enacting the ...
* List of landmark court decisions in the United States
Landmark court decisions in the United States change the interpretation of existing law. Such a decision may settle the law in more than one way:
* establishing a significant new legal principle or concept;
* overturning prior precedent based ...
* Living Constitution
The Living Constitution, or judicial pragmatism, is the viewpoint that the United States Constitution holds a dynamic meaning that evolves and adapts to new circumstances even if the document is not formally amended. The Constitution is said ...
* Originalism
In the context of United States law, originalism is a theory of constitutional interpretation that asserts that all statements in the Constitution must be interpreted based on the original understanding "at the time it was adopted". This conc ...
* Public interest litigation The chief instrument through which judicial activism has flourished in India is public interest litigation (PIL) or social action litigation (SAL). ''Public interest litigation'' (PIL) refers to litigation undertaken to secure public interest and de ...
* Philosophy of law
Philosophy of law is a branch of philosophy that examines the nature of law and law's relationship to other systems of norms, especially ethics and political philosophy. It asks questions like "What is law?", "What are the criteria for legal val ...
* Rule according to higher law
* Unconstitutional constitutional amendment
An unconstitutional constitutional amendment is a concept in judicial review based on the idea that even a properly passed and properly ratified constitutional amendment, specifically one that is not explicitly prohibited by a constitution's text ...
*Certiorari
In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
Notes
References
* ''Merriam-Webster's Dictionary of Law'' (1996), Merriam-Webster.
*
*
Ginsberg, Benjamin, et al. We the People: an Introduction to American Politics. W.W. Norton & Company, 2017.
Further reading
Legal books
* Paul O. Carrese
Paul O. Carrese (kuh-REES) is Director of the School of Civic & Economic Thought and Leadership at Arizona State University. For nearly two decades he was a professor of political science at the United States Air Force Academy. He is author of t ...
, 2003. ''The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism'' (Chicago: University of Chicago Press).
* Duncan Kennedy, 1998. ''A Critique of Adjudication'' (Cambridge, MA: Harvard University Press).
* Carrol D. Kilgore, 1977. ''Judicial Tyranny: An Inquiry into the Integrity of the Federal Judiciary'' (Thomas Nelson).
* Sterling Harwood, 1996. ''Judicial Activism: A Restrained Defense'' (London: Austin & Winfield Publishers), 167pp. .
* Christopher Wolfe, 1997. ''Judicial Activism'', 2nd ed. (Totowa, NJ: Rowman & Littfield Publishers, Inc.).
* Kenneth M. Holland
Kenneth is an English language, English given name and surname. The name is an Anglicised form of two entirely different Gaelic personal names: ''Cainnech'' and ''Cináed (disambiguation), Cináed''. The modern Scottish Gaelic, Gaelic form of ''C ...
, editor, 1991. ''Judicial Activism in Comparative Perspective'' (Palgrave Macmillan).
* Ronald Dworkin
Ronald Myles Dworkin (; December 11, 1931 – February 14, 2013) was an American philosopher, jurist, and scholar of United States constitutional law. At the time of his death, he was Frank Henry Sommer Professor of Law and Philosophy at New Yo ...
, 1988. ''Law's Empire'' (Cambridge, MA: Harvard University Press).
* Alexander M. Bickel, 1986. ''The Least Dangerous Branch'' 2nd ed. (New Haven, CT: Yale University Press).
* Arthur Selwyn Miller
Arthur is a common male given name of Brythonic origin. Its popularity derives from it being the name of the legendary hero King Arthur. The etymology is disputed. It may derive from the Celtic ''Artos'' meaning “Bear”. Another theory, more ...
, 1982. ''Toward Increased Judicial Activism'' (Greenwood Press).
* Ronald Dworkin
Ronald Myles Dworkin (; December 11, 1931 – February 14, 2013) was an American philosopher, jurist, and scholar of United States constitutional law. At the time of his death, he was Frank Henry Sommer Professor of Law and Philosophy at New Yo ...
, 1977. ''Taking Rights Seriously'' (Cambridge, MA: Harvard University Press).
* Lino A. Graglia, 1976. ''Disaster by Decree'' (Ithaca, NY: Cornell University Press).
* Michael Rebell
Michael A. Rebell is the executive director of th Center for Educational Equityat Teachers College, Columbia University. He is an experienced litigator in the field of education law, and he is also professor of law and educational practice at Te ...
and Arthur R. Block, 1982. ''Educational Policy Making and the Courts: An Empirical Study of Judicial Activism'' (Chicago: University of Chicago Press).
* H. L. A. Hart
Herbert Lionel Adolphus Hart (18 July 190719 December 1992), known simply as H. L. A. Hart, was an English legal philosopher. He was Professor of Jurisprudence (University of Oxford), Professor of Jurisprudence at Oxford University an ...
, 1961. ''The Concept of Law'' (Oxford: Oxford University Press).
*
Hamlyn Lectures
Popular books
* Kermit Roosevelt
Kermit Roosevelt MC (October 10, 1889 – June 4, 1943) was an American businessman, soldier, explorer, and writer. A son of Theodore Roosevelt, the 26th President of the United States, Kermit graduated from Harvard College, served in both Wo ...
, October 15, 2006. ''The Myth of Judicial Activism: Making Sense of Supreme Court Decisions'' (Yale University Press
Yale University Press is the university press of Yale University. It was founded in 1908 by George Parmly Day, and became an official department of Yale University in 1961, but it remains financially and operationally autonomous.
, Yale Universi ...
Publishers), 272pp.
* James B. Kelly, July 30, 2006. ''Governing With the Charter: Legislative And Judicial Activism And Framer's Intent (Law and Society Series)'' (UBC Press
The University of British Columbia Press (UBC Press) is a university press that is part of the University of British Columbia. It was established in 1971. The press is based in Vancouver, British Columbia, Canada, and has editorial offices in Kelo ...
Publishers), 336pp.
* Rory Leishman, May 2006. ''Against Judicial Activism: The Decline of Freedom And Democracy in Canada'' ( McGill-Queen's University Press Publishers), 310pp.
* S. P. Sathe, December 2003. ''Judicial Activism in India'' (Oxford University Press
Oxford University Press (OUP) is the university press of the University of Oxford. It is the largest university press in the world, and its printing history dates back to the 1480s. Having been officially granted the legal right to print books ...
Publishers), 406pp.
* Robert Bork
Robert Heron Bork (March 1, 1927 – December 19, 2012) was an American jurist who served as the solicitor general of the United States from 1973 to 1977. A professor at Yale Law School by occupation, he later served as a judge on the U.S. Cour ...
, 2003. ''Coercing Virtue: The Worldwide Rule of Judges'' (AEI Press)
* Herman Schwartz, editor, 2002. ''The Rehnquist Court: Judicial Activism on the Right'' .
* David Gwynn Morgan, 2001. ''A Judgment Too Far? Judicial Activism and the Constitution'' (Cork University Press).
* Bradley C. Canon and Charles A. Johnson, 1998. ''Judicial Policies: Implementation and Impact'' 2nd ed. (Congressional Quarterly Books).
{{DEFAULTSORT:Judicial Activism
Constitutional law
Activism by type
Sociology of law
Philosophy of law
Ethically disputed judicial practices
Conflict of interest
Rhetoric