Judicial Activism Reconsidered

Written by: Thomas Sowell

Like many catchwords, “judicial activism” has acquired so many different meanings as to obscure more than it reveals. Yet it is not a term that can simply be ignored as intellectually “void for vagueness,” for at the heart of it are concerns about the very meaning and survival of law. Abandonment of the term not being a viable option, clarification becomes imperative.
“Judicial activism” and “judicial restraint” raise logically obvious but often ignored questions: Activism toward what? Restraint toward what? Are judges deemed to be activist or restrained toward (1) the current popular majority, (2) the legislature representing the current popular majority, (3) the statutes passed by present or past legislatures, (4) the acts of current of past executive or administrative agencies, (5) the meaning of the words in the Constitution, (6) the principles or purposes of those who wrote the Constitution, or (7) the legal precedents established by previous judicial interpretations of the Constitution?
Activism or restraint toward one of these does not imply the same toward all the others, and may in some instances imply the opposite toward some other or others. For example, a “restrained” jurist, attempting to hold fast to the “original intentions” of constitutional provisions, must actively strike down statutes passed by a legislature which repeatedly over-steps the bounds of those provisions. Conversely, an “activist” jurist may passively accept expansive legislative action of a sort deemed consistent with general constitutional “values,” even if lacking specific constitutional authorization or entering a “gray area” of constitutional prohibitions. One of the more striking examples of the latter was Justice William O. Douglas’ repeated deference to the legislature in economic and social legislation, using language dear to the heart of those who believe in judicial restraint,1 though Douglas was a classic judicial activist.
In the analysis that follows, the first priority will be to operationally distinguish judicial activism from judicial restraint, which involves focusing on the concept of “original intent.” Only then is it possible to move on to the substantive issues dividing them. Finally, the prevailing image of “liberal, activist judges” will be questioned, the argument being that judicial activists have historically come in various political varieties.

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