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...