Judicial Activism Essay

1643 words - 7 pages

The nomination of a Supreme Court justice is an event of major significance in

American politics. Not only does the court wield enormous judicial power,

separate and independent from the executive and legislative branches, but

vacancies within the court also occur infrequently. In fact, vacancies are so

infrequent that they may only occur one or twice, if at all, during a sitting

President’s tenure in office. The reason for the infrequency is that Article III of the

Constitution states that all federal judges will hold office “during good

Behavior”(Wagner 19), which essentially amounts to a lifetime appointment

barring impeachment and an opportunity for the President to have long-lasting

influence over the direction of the court (Rutkus 1). Regarding the power of the

court, in 1803 the court held that it has the power of “judicial review” and can

strike down any law or government action that it considers inconsistent with the

U.S. constitution (Jost 257). Therefore, it has the ability to overturn decisions

made by elected officials, including Congress and the President. With the U.S.

Supreme Court yielding so much power as the ultimate interpreter of the

constitution, It’s important to be wary of judicial activism and be able to

recognize it, determine if it exists on our current Supreme Court, and

ultimately hold our highest court to the initial intent for which it was first


For many, judicial activism means any judgment that does not meet their own

political purposes. Therefore, before having a discussion on judicial activism,

there must first be an agreed upon definition of what actually constitutes judicial

activism. In The Challenge of Democracy, the definition of judicial activism is that

it is a judicial philosophy in which judges tend not to defer to decisions of elected

branches of government, resulting in the invalidation or emasculation of those

decisions. In practice, this would mean that the judges would be using their

judicial power to promote their preferred social and political goals (Janda, 381).

Using that definition, one can look closer at the current Supreme Court to see if

the they are in fact using their position to further a political agenda.

There are several red flags that one can use to measure a court and its

decision to determine there is indeed the presence of judicial activism. Sen.

Sheldon Whitehouse, a member of the Senate Judiciary Committee, presents

five red flags by which one can measure the presence of activism among

Supreme Court decisions. They are as follows:

1) An activist court would be less likely to respect the judgments of the

American people as expressed through state and federal legislation.

2) An activist court would chafe at unwelcome prior precedents of the court.

3) An activist court, facing the perennial choice...

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