Why is judicial activism good

State , 16 Wall. Happersett , 21 Wall. Ferguson , U. Bell , U. Gobitis , U. Cases over which there is significant division, such as Roe v. Wade , U. New York , U. Dred Scott v. Sandford , 60 U. Gore , U. Even if Dred Scott and Bush v.

Gore are included, only two of 13 reviled cases are activist while 11 are deferential. Vanderbilt Law Magazine Winter Apply Now. Make a Gift. All rights reserved. Toggle navigation. About Vanderbilt Law School offers a rigorous legal education delivered by a world-class faculty in a uniquely collegial and supportive environment.

Get Connected. Prospective Students Academics J. Application Process LL. After all, if liberals celebrated the judicial activism of the Warren court, why should they decry the judicial activism of the Roberts court?

This accusation is unfounded, but it carries considerable weight in public discourse. I want to set the record straight. At the outset, it is necessary to explain the difference between judicial activism and judicial restraint. When a court exercises restraint, it generally defers to the judgment of the elected branches. Even in the face of a claim that a particular law violates the Constitution, the court gives the elected branches the benefit of the doubt and upholds the challenged law as long as it is reasonable.

When a court engages in judicial activism, it second-guesses the judgment of the elected branches and invalidates the law unless the government can prove to the court that the law is clearly constitutional. A decision to invalidate the Affordable Care Act would clearly be an example of judicial activism, because the court would be second-guessing the elected branches rather than deferring to their judgment about the impact of millions of individual decisions about health insurance on interstate commerce.

The central question in constitutional law is: When is judicial activism appropriate? The best answer, which is grounded in the vision of the framers and has been a central part of constitutional law for more than 70 years, is that judicial activism is appropriate when there is good reason not to trust the judgment or fairness of the majority.

It is in that situation when it is most important for judges to intervene to enforce the guarantees of the Constitution. It is only by lobbying the judiciary to have the issues sorted out discretionally may this be achieved. Put: it allows the judges to rationalize their decisions and arrive at what they deem fit.

For any democracy to function well and robustly, the institution of the judiciary has to be similarly strong and robust. Only by granting them the leeway to act independently and arrive at uncompromised decisions can the judiciary attain such heights.

Such an approach also restores the faith of the public in the institution of the judiciary. Judicial processes are generally faster than that of the legislature and the executive combined. It hence goes that this approach is also a sure way of expediting the dispensation of justice and the execution of the matters that are brought before it. Yet again, it helps to restore the public faith in such an institution. The executive and the legislative arms of the government are, for a large part, beholden to the party interests and positions.

They may not hence really champion the interests of the masses. Thus, it is only the judiciary that, for a large part, works to uphold the rights of the citizenry. When every other approach fails, it is only the judiciary, through the approach of judicial activism, which may be looked upon to restore order.

Moreover, many constitutions world over empowers their citizenry to petition to the judiciary to have their concerns addressed and well taken care of.

At the core of judicial activism is the issue of public participation. This entails the members of the forming public caucuses or coalescing around a group to agitate for their rights.

It is hence a great way to deepen public participation and to keep the masses aware of their rights and assurances. For a large part, the judiciary is largely seen and considered to be a mere spectator in the affairs of the nation.

Nothing could be further from the truth in the sense that activism gives the judiciary the leeway to stamp its authority and make its contribution to the wellbeing of the entire nation. Judicial activism is highly effective for bringing forth social reforms. Unlike the legislature, the judiciary is more exposed to the problems in society through the cases it hears. So it can take just decisions to address such problems.

In case the judges are voted into office, this approach towards the dispensation of justice improves their accountability. It sees to it that they make rulings and take courses of actions that are geared to communal well-being.

The failure of the judges to toe the line may land them in trouble and cause them not to be re-elected. Matters of law can get too complicated at times. If judgments have to be made strictly based on the letter of the law, lots of confusion may arise.

This judicial activism comes in here to offer the necessary plausible way forward. It lays the ground for helpful insights that may be used to arbitrate matters. Closely related to the above is the fact that it helps to adjudicate and execute complex cases with relative ease.

Unlike the traditional model of adjudication, this one does not rely strictly on the written law. Instead, it gives the judges some leeway to use their discretion when settling disputes. Many a time, this approach is adopted if there is a variance between the laws passed by the legislature and endorsed by the executive versus the public expectations on the whole.

Only the institution of the judiciary via judicial activism can step in and align these laws with the public good. Compared to the many other forms of adjudication, this one is faster and more direct. It is bedeviled with fewer hazards and is hence less indebted to the many bureaucracies that may have to be confronted when tackling matters in other ways.

It is more transparent and accountable. Though a great way to tackle issues, judicial activism is not without its share of downsides.

Below are some of the serious drawbacks of this mode of settling disputes and passing judgment:. Judiciaries ought to be completely independent and uncompromised. That is why, for a large part, they have to base their rulings and convictions purely based on the evidence tabled before them and the laws passed. Such an approach, for a large part, is likely to interfere with this independence.