Judicial Activism: Definition, Cases, Pros & Cons

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  • 0:00 Definition Of Judicial…
  • 0:45 Case Example: Roe V. Wade
  • 1:55 Pros And Cons Of…
  • 2:55 Lesson Summary
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Lesson Transcript
Jessica Schubert

Jessica is a practicing attorney and has taught law and has a J.D. and LL.M.

Expert Contributor
Jeffrey Perry

Jeffrey Perry earned his Ph.D. in History from Purdue University and has taught History courses at private and state institutions of higher education since 2012.

After you finish this lesson, you will understand what constitutes judicial activism. Moreover, you will review a key case involving judicial activism. Finally, you will examine the pros and cons of judicial activism.

Definition of Judicial Activism

Imagine that your friends, Aaron and Brad, are having an argument about what to make for dinner. Aaron wants steak, while Brad wants Chinese food. The two cannot decide, so they ask you to make the decision. You really want Chinese food, so when you make your decision, you choose that option. Instead of making a neutral choice, you decided based on your own preferences. This is the very concept behind judicial activism.

Judicial activism can best be described as rulings that are guided by the personal decisions or political interests of the individual judge. For example, instead of strictly applying the law, the judge makes a determination which includes his own stance on the issues of the case.

Case Example: Roe v. Wade

There are significant U.S. Supreme Court decisions that are believed to be examples of judicial activism. One good example is Roe v. Wade. In this case, the Supreme Court determined that a Texas law criminalizing abortion was unconstitutional.

The Texas law indicated that abortion constituted a criminal act unless it was for the purpose of saving the mother's life. The majority of the Supreme Court decided that an individual's right to privacy includes the right to have an abortion. The Court also determined that whether a woman should have a late trimester abortion was best left to the doctors. Here, the court included some medical statements. Many critics believe that Roe v. Wade was the quintessential judicial activism case because the judges were basically making the law on abortion, as opposed to strictly interpreting the law.

To begin, critics claim that the court read the right to an abortion into the right to privacy. Furthermore, some say that the Court stretched the law because the medical statements and medical advice are not included in the law. Thus, these facts should not appear in a legal decision. Ultimately, critics claim the Court deviated from simply interpreting the law and instead basing it on their own beliefs.

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Additional Activities

Discussion and Debate Activity for Judicial Activism:

With a partner, discuss the pros and cons of judicial activism as stated in the lesson. After doing so, imagine you are Supreme Court justices - one of you is in favor of allowing for judicial activism and the other is against it. Both should read the 4th Amendment to the U.S. Constitution. A hypothetical case regarding businesses spying on citizens' internet activities has reached your courtroom. The plaintiff claims that a business has unconstitutionally spied on their internet searches in order to sell them more goods and sell their private data to other companies. The defendant (the business) claims that the U.S. Constitution says nothing about private business collecting data on potential customers, or the internet, and that the Constitution's text should be strictly applied and not interpreted (which means that the Constitution says what it says and nothing else). Now, keeping in mind the text of the 4th Amendment, as well as the uses and abuses of judicial activism, decide the case.

Additional Questions to Consider:

  • Opponents of judicial activism at times claim that the "law" is exists outside of society and operates independently of social change. Do you agree with this statement? Why or why not? (Hint: there is not necessarily a right answer, but the purpose of this question is to think about where law comes from and how it applies to society.)
  • Federal judges are appointed by the president and not elected by the people. The Founders believed this would shelter judges from politics and allow them to rigorously apply the law. Do you think having non-elected judges is a good idea? Why or why not? If not appointed for life (as are U.S. Supreme Court justices), should there be other ways that federal judges gain office and serve the people?

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