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Judicial Activism and Its Definitions


The role of the judiciary in regulating the public life has been under discussion since the foundation of the United States. It actually is not unique in these terms; any socially important issue is debatable by its nature, as society is too heterogeneous to avoid disagreement. This is the main reason why states develop constitutions that allocate responsibilities to the branches of power and determine their duties. The Constitution of the USA, in particular, defines the population as the source of law, not certain individuals, regardless of the positions that they occupy. Therefore, judges are not allowed to legislate, but some try to do it nevertheless, which phenomenon has acquired the name of judicial activism. Although this term has at least two possible interpretations, both of them hint at the uneccaptability of such behavior in a democratic state, whose population follows the rules that it actually created.

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Defining Activism

The primary step to understanding the concept under review is to identify what activism means in general. Thus, Merriam-Webster Dictionary describes it as “a doctrine or practice that emphasizes direct vigorous action especially in support of or opposition to one side of a controversial issue” (“Activism,” n.d., para. 1). This meaning of the word is academic, that is, exclusively semantic with no positive or negative connotations of social origin that can transform the original senses of concepts substantially.

Regarding rhetoric, especially political, it uses the notions of activism and activists as pejoratives. The most probable reasons for this are the unpopularity of certain suggestions, possible radicalism of views as well as methods, and the inclination of humans to create and spread stereotypes (Smucker, 2017). Simply stated, activists normally oppose influential individuals or groups of people, traditional and/or widespread views and practices that are considered normal, or other, which results predictably in negative attitude towards them.

Judicial Activism as a Subtype

As apparent from the above definition, being an activist presupposes a strong opinion of principle and the readiness to invest effort in persuading the wider public to share it. A judge who applies an approach of such a kind to his or her professional performance subsequently is possible to call an activist. Such practitioners rely on their own views of constitutional regulations as the only reference point in decision-making, neglecting other authorities and frequently even colleagues. In its academic sense, their behavior is an opposite of so-called judicial restraint, which term stands for “substantial deference to the views of the elected branches” when “considering constitutional questions” (Roosevelt, n.d., para. 1). In other words, restraint means remaining within the common perspective on the functions of each governmental official while activism opposes it and presumably intends to reconsider.

Turning to political rhetoric, it is possible to assume that adepts of polar ideologies, for instance, liberals and conservatives, may label each other activists for the decisions that one of the sides does not accept. Thus, the former accuse the latter of “reinforcing every American progressive’s nightmare,” and the latter consider the former “unwise and dangerous” (Pilkington, 2021, para. 5; Rivkin & Grossman, 2021, para. 1). The reasons, ironically, are identical; representatives of both parties actually seek to enforce their personal views of justice and the so-called common good.

Why Judicial Activism Is Not a Proper Phenomenon

The above drives to the conclusion that in the political context, judicial activism may be desirable or not, depending on the degree to which its results correspond to the position of the assessing individual. Evaluative judgements, however, are unacceptable in the field of legislation because they compromise people’s equality under the law. Therefore, regardless of subjective attitude to particular cases, the given practice should not occur in the society that respects the Constitution and adheres to the principles of democracy.

The Lens of the Constitution

It is essential to remember that the American society lives in accordance with the fundamental document that it framed at the early stages of its formation and that continues to regulate its functioning. Among other, the Constitution dictates the basics of rulemaking, specifically, determines that “We the People” are the only source of law, which comes from them through the officials whom they elect (Griffith, 2021, para. 3). Those officials, in turn, form the Congress, whose activity subsequently reflects and communicates the will of the voters. In addition, all of the states have local regulatory authorities.

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Considering the above, judges doubtlessly may not influence laws because they do not represent the legislative branch of power. The judiciary, according to the Constitution, is the liaison between the lawmakers and the population, whose role lies in applying the rules, which the two sides create in collaboration, to conflicts and disputes (Griffith, 2021). This is the normal that the judges who perform as activists oppose; their behavior, therefore, is anticonstitutional.

The Lens of Democracy

The dominance of the population’s will in legislation is among the basics of democracy, which remains the only possible social order in the United States. In the late 18th century, the forming American society did not create a monarchy, “an oligarchy of philosopher-kings, or even a theocracy” (Griffith, 2021, para. 1). In fact, it opted for democratic values, whose protection has been in the list of its primary tasks since then. It took decades, in particular, to provide voting rights to women and to enfranchise African as well as Native Americans, which was critical for building an actually democratic state.

Judicial activism, meanwhile, undermines the above principles, trying to replace them with the idea that certain categories of the population have more legislative power than the other do. Specifically, activist judges believe that they have the right to make or change laws directly as they wish to enforce their personal opinions on the people, who, in turn, are to obey. This is typical of authoritarian societies but may not exist in democracies that are based on voting and protests as the mechanisms of ruling, not the desires of particular individuals.


Similar to activism in general, its judicial subtype has two definitions, notably, the academic and the rhetoric. The former is applicable to any vigorous action that aims at changing the current situation, and the latter means classifying that action as positive or negative by its correspondence to the person’s values. Semantically, therefore, judicial activism is an antonym of judicial restraint, while in reality, it is frequently used to describe the court decisions with which the speaker does not agree. The unacceptability of such a practice, however, is equally apparent from both formulations. First, legislation should not involve any subjective judgements and the prevalence of personal views over the rules, as this contradicts the principles of democracy. Second, the Constitution separates judges from lawmakers, and an attempt to change the roles subsequently is a violation of it.


Activism. (n.d.). In Merriam-Webster Dictionary. Web.

Griffith, T. B. (2021). How judicial activism on the right and left is threatening the Constitution. The Deseret News, Web.

Pilkington, E. (2021). Post-Trump supreme court appears willing to embrace judicial activism. The Guardian, Web.

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Rivkin, D. B., & Grossman, A. M. (2021). The temptation of judging for ‘Common Good.’ The Wall Street Journal, Web.

Roosevelt, K. (n.d.). Judicial restraint. Britannica. Web.

Smucker, J. M. (2017). Why we should stop using the word “activist.” In These Times, Web.

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