Judicial activism refers to the practice of judges making rulings based on their policy views rather than their honest interpretation of the current law. Judicial activism is usually contrasted with the concept of judicial restraint, which is characterized by a focus on stare decisis and a reluctance to reinterpret the law.
Judicial activism is often maligned by judges and political pundits. On both ends of the political spectrum, accusations of judicial activism are commonplace. Critics argue that, regardless of whether their chosen policy was advisable, judicial activism exceeds the proper exercise of judicial authority.
Common critiques of judicial activism include arguments that:
- A judge cannot be a neutral arbiter of disputes if they intend to rewrite the law at the outset of a case.
- It is unjust to hold parties to a novel interpretation of the law.
- Judicial activism risks upsetting the balance between the three branches of government.
- As judges are unelected, judge-made policies are less likely to receive wide acceptance from the general public.
- Judges are often ill-equipped to make sound public policy decisions.
Despite these critiques judicial activism is not always seen as a negative. Judicial activism is inherently anti-majoritarian, and proponents of judicial activism view it as a necessary check on legislative overreach.
A famously positive example of judicial activism is Brown v. Board of Education, which has become nearly universally hailed as a landmark decision for civil rights. However, other cases, such as Obergefell v. Hodges, Griswold v. Connecticut, New York State Rifle & Pistol Ass'n, Inc. v. Bruen, Roe v. Wade, and District of Columbia v. Heller, have been both hailed and derided instances of judicial activism, depending on the political leanings of the commenters.
[Last updated in June of 2023 by the Wex Definitions Team]