Sunday, December 10, 2006


The methods by which judges engage in judicial activism, according to critics who make this accusation, include the following:

Overturning legislation passed by an elected legislature, using an interpretation of the constitution that critics believe is not clearly mandated or implied by the constitutional text.
Ruling against the text or intent of a statute, using what critics argue is an incorrect or overreaching interpretation.
Ruling against judicial precedent in a way that critics hold is a radical or unjustified departure from accepted interpretation.
Holding legislation unconstitutional based on what critics view as a clearly flawed precedent.
Selectively using obscure case law or foreign law, in preference to what is seen by critics as more pertinent case law or statutory law.
Use by state courts of a single subject rule to nullify legislation or state constitutional amendments, in what critics say is a questionable manner.
Michigan Supreme Court Justice Stephen Markman has drawn up a list of "several of the more prominent rhetorical devices that often cloak judicial fiats," in a September 19, 2005 article in National Review.

Spirit of the Law: Where the language of a law conflicts with the policy preferences of a judge, it is common to claim that the "spirit of the law" compels the preferred outcome.
Balancing: The process of “balancing” rights and interests is mainly a legislative function, rather than a judicial function.
Public Policy: Judges will often resort to “public policy” as a way to bypass the words of the law.
Equity: Judges sometimes speak of “equity” as a means to circumvent the language of the law.
Ambiguity: While laws are sometimes truly ambiguous, they are not as ambiguous as some judges often find them to be.
Broad Construction: Judges often say that a law should be interpreted “liberally” or "broadly" or “narrowly” or “conservatively”, but the role of a judge is generally to interpret the text of a law “reasonably.”
Legislative History: Excessive reliance upon legislative history may allow the words of the lawmaking authority to be replaced by a “history” that was never enacted into law.

Judicial activism

Judicial Activism is the tendency of some judges to take a flexible view of their power of judicial interpretation, especially when such judges import subjective reasoning that displaces objective evaluation of applicable law. The term is usually used pejoratively to describe decisions that are perceived to endorse a particular agenda. Whether a decision is characterized as judicial activism is often a matter of political polemic. Although alleged activism may occur in many ways, the most debated cases involve courts exercising judicial review to strike down statutes as unconstitutional. Views about constitutional interpretation abound, ranging from strict constructionism to the living constitution, and therefore, in practice, any controversial decision striking down a statute may be labeled by the decision's critics as judicial activism. The phrase traditionally has represented a call for judicial restraint.