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Judicial activism is a controversial issue because judges are often presumed to be almost robotically neutral. However, judges are human beings who are concerned about the integrity of the law as the law reflects core values and social norms. When the laws do not reflect progress in social norms, judges often take the initiative to make decisions that encourage change. Called "judicial activism," the process of using judicial power to influence the law is an inevitable part of the American justice system and an inevitable component of American political culture.
Judicial activism can be loosely defined as "decisions that overturn laws and overrule precedents," (Chemerinsky, 2010). Judicial activism is contrasted with judicial restraint, which "occurs when courts defer to the other branches of government and follow precedents," (Chemerinsky, 2010). It is easy to see how when the public agrees with the policy in question, judicial activism is celebrated but not when the action in question is contrary to the prevailing trends. In the past, and especially since the Nixon presidency, judicial activism has been derided primarily by conservatives...
Judicial activism is technically a neutral activity, and can often be an essential component of the democratic process. For example, Brown v. Board of Education was considered activist in its time, as was Roe v. Wade. If the Supreme Court justices, or any other judges, never used their power to affect meaningful social change, then the nation would remain stagnant.
Judges serve in a unique role as interpreters of the law. They must pore over legal cases to reveal precedent: the calling card of the American judicial system. Unlike judicial systems based on statutory law, the American judicial system is an antagonistic one requiring an appreciation for nuance and ambiguity. The Constitution is often kept deliberately vague in its language in order to enable interpretation that suits American life at different points in time or stages in its development. If the Supreme Court were, for example, to hear future cases related to massive gun reform in some states or the federal legalization of all recreational drugs, then it could certainly do so. Recent cases of judicial activism include the Supreme Court ruling in favor of marriage equity, essentially an affirmation of nontraditional gender norms in society.
Judicial activism should not be confused with the impingement…
References
Chemerinsky, E. (2010). A stunning example of judicial activism. Pittsburgh Post-Gazette. Retrieved online: http://www.post-gazette.com/opinion/Op-Ed/2010/01/24/A-stunning-example-of-judicial-activism-The-Supreme-Court-overturns-decades-of-precedents-on-campaign-spending/stories/201001240177
Loyola, M. (2013). Judicial activism, defined. National Review. Retrieved online: http://www.nationalreview.com/corner/352017/judicial-activism-defined-mario-loyola
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