When court rulings are based upon what is suspected to be purely personal reasoning or political, judicial activism is used. Basically, this means that judges intertwine their own personal feelings into a sentence or conviction, instead of abiding by the existing laws. This personal interpretation of laws has been causing quite a bit of heated debate in the US, especially with many cases have been popping up. There were times when this methodology was hoped for from the courts, such as in the case of the implementation of the Affordable Care Act and same sex marriage. On the other hand, it is discouraged as it interferes with the other government branches.
Somehow, every judicial case has a foundation of activism within it, so its pros and cons must always be weighed to determine if the appropriate course of action is being carried out. Let us take a look at some facts from both sides of the coin to reach a well-informed decision on this subject.
List of Pros of Judicial Activism
1. It provides a system of checks and balances to the other government branches.
Considering that politics commonly plays a role in almost all other government branches, it would make sense that it would do the same in the judicial system too. However, instead of being liberal or conservative, labels like “progressive interpretation” or “literalist” are being used. Judicial politics is formed by how judges view the law and how it should be interpreted.
2. It supplies helpful insight.
Take note that there is a lot of sensitive issues that need to be handled with a certain amount of care that many laws do not allow. Thus, judicial activism is employed to allow a judge to use his personal judgment in cases where the law fails.
3. It gives judges a personal voice to fight unjust issues.
Through judicial activism, judges can use their own personal feelings to strike down laws that they would feel are unjust. Whether it is an executive order, an immigration issue or a criminal proceeding, judges would have a good vantage point in deciding a certain case’s outcome.
4. It would allow people to vote judges off the bench.
Many local judges are elected to the bench, which means that if they rule in a way that people disagree consistently, they can be voted off on the next cycle. However, some judges might serve up to 15 years from a single election, so this benefit might have some limitations to it.
5. It places trust in judges.
Judges’ oath of bringing justice to the country does not change with judicial activism, which allows them to do what they see fit within reasonable limits. The reason why this is a good thing is that it shows the instilled trust placed in the justice system and its judgments.
6. It has its own system of checks and balances.
Even if a judge decided and ruled that certain law is unjust, it can still be actually overruled with an appeal to another court, even to the Supreme Court. In some cases, a state affair would start before a local judge and be appealed to the Supreme Court. It would also transition into a federal case, so it would be heard multiple times before a final resolution.
List of Cons of Judicial Activism
1. It sees the letter of the law and politics as separate issues.
In judicial activism, there is a political understanding of the law, while there is also a direct interpretation of it. Though these aspects often come together, they can also be very far apart. In the US, a judge can literally override any law simply because they feel like it, and he can even set aside a jury’s verdict under certain circumstances.
2. It does not apply any law.
When this type of judicial system is employed, it would seem that the laws do not apply, where judges can override any law that exists, which technically means there are no laws before their eyes.
3. Its rulings would eventually become final.
Judicial activism becomes a more profound subject for those who serve on the Supreme Court, as their rulings generally stand. With the power to have the final say on matters, their judicial opinions would also become standards for ruling on other cases. For example, when parts of the Defense of Marriage Act were struck down, many other judges also ruled that same sex marriage is permitted. Whether you feel these actions are good or bad, it occurred due to activism.
4. It might be influenced by personal affairs.
When judicial activism is exercised, it is often done for solely personal and selfish reasons, like one that might be political or one where a judge has received compensation for his judgment. Most likely, laws will be overruled when there is personal objection to them involved. For example, a fundamental Christian judge might rule that protest restriction laws against abortion clinics are constitutional, or a proponent judge could strike down a ban on abortion when passed. Often times, judicial activism has become predictable simply because people already know about the one who is ruling the case.
5. It appoints, rather than elects, judges.
Under judicial activism, many ruling judges are not elected, but rather appointed by government officials, which means that people in a region would not have any say as to how they want local judges to rule. In some cases, this system is taxation without representation, as money from taxpayers would go to support the judges’ salaries, while ruling based upon personal desires rather than what the local citizens want to see.
The pros and cons listed above show that when judicial activism is properly implemented, it can check and balance existing laws properly. However, it can also be easily abused based solely on a judge’s personal preferences. So, do its benefits outweigh its risks? With the information provided in this article, we can decide whether or not we would put our trust in judicial activism.
Natalie Regoli is a child of God, devoted wife, and mother of two boys. She has a Master's Degree in Law from The University of Texas. Natalie has been published in several national journals and has been practicing law for 18 years.