Myth of Judicial Activism

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Judicial Activism 1. Description a. Judicial activism an expansive exercise of judicial discretion, where a court preempts or extends existing precedent, principle, or policy. b. Common to all definitions of judicial activism is the concept of judicial overreaching—a daring use of judicial power to effect social change (policy making). A more neutral term would be judicial intervention c. First coined by Arthur Schlesinger, Jr., in a January 1947 Fortune magazine article, the term judicial activism typically carries a uncomplimentary connotation—“judges making law” d. judicial overreaching with anti-institutional approach 2. Critical Debates: a. Judicial activism as a creature of judicial intrusiveness that, under the pejorative view, undermines representative democracy through judicial autocracy. b. Judicial activism arguably subverts past precedent and perverts legislative intent (under a separation of powers analysis) through legal artifices, where judges wield excessive interpretive latitude. c. Activist judges, exercise their judicial discretion contrary to their principals (i.e., as agents for legislators in applying the law) in favor of their principles (i.e., as agents for social policy considerations). d. judges can only legitimately discover clear answers in the text agreed to by the framers of the Constitution or the intent of those framers, e. judges become free to impose their political preferences in the guise of constitutional adjudication; f. they should only decide what is necessary to resolve a dispute between the two parties to a dispute g. Positively, judicial activism may be regarded as legal adaptation to social change by evolving principles drawn from constitutional text and precedent and applying core constitutional values
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