Judicial Activism Pros and Cons


Should justices and judges be allowed to rule in court based on their own political leanings or opinions? When this does occur, the practice is known as “judicial activism.” There have been times when judicial activism has been hoped for from the courts, such as with same sex marriage or the implementation of the Affordable Care Act. At other times, judicial activism is discouraged because it is seen as interfering with the other branches of government.

In some ways, every judicial case has a foundation of activism within it. Therefore the pros and cons of judicial activism must always be weighed to determine if the right course of action is being pursued.

What Are the Pros of Judicial Activism?

1. It provides a system of checks and balances to the other branches of government.
Politics plays a role in all the other branches of government, so it only makes sense that it would play a role in the judicial system as well. Instead of being conservative or liberal, however, labels like “literalist” or “progressive interpretation” are used. How a judge views the law and how it should be interpreted is how judicial politics form.

2. It gives a judge a personal voice to fight unjust issues.
Judges can use their own personal feelings through judicial activism to strike down laws that they feel are unjust. Whether it is an immigration issue, an executive order, or a criminal proceeding, judges may have a lot of latitude in deciding the outcome of a case.

3. The judicial system even has its own system of checks and balances.
Even if one judge may decide a law is unjust and rule it as such, an appeal to another court can actually overrule that first judgment. Appeals can be made all the way to the Supreme Court. In some instances, a state matter may start before a local judge, be appealed to the state supreme court, and then transition into a federal case so it is heard 6+ times before a final resolution.

4. People can often vote judges off the bench.
Many local judges are elected officials. This means if they rule in such a way that the people don’t agree consistently, then they can be voted off the bench on the next cycle. Some judges may serve 10-15 years from a single election, however, so there may be limitations to this benefit.

What Are the Cons of Judicial Activism?

1. Politics and the letter of the law are two separate issues.
There is a political understanding of the law and there is a direct interpretation of the law. Although the two sides often come together, there are times when politics and direct interpretation are very far apart. In the US, a judge can literally override any law simply because they feel like it. They can even set aside a jury’s verdict under certain circumstances.

2. Judicial activism is usually done for personal reasons.
Most laws are overruled when there is a personal objection to the law. A judge might be a fundamental Christian and rule that protest restriction laws around abortion clinics are not constitutional. A judge could be pro-choice and strike down a 12 week ban on abortions when passed. Many times judicial activism is predictable simply because people know about the person who is ruling in the case.

3. Eventually rulings become final.
For those serving on the Supreme Court, judicial activism becomes a more profound subject because their ruling generally stands. With the final say on the matter, their judicial opinions can wind up becoming judicial standards for ruling on other matters. When portions of the Defense of Marriage Act were struck down, it caused many judges to rule that same sex marriage was permitted. Whether you feel such actions are good or bad, it happens because of activism.

4. Not every judge is an elected judge.
Many judges that rule on cases are not elected, but appointed by other government officials. This often means a region doesn’t have any say at the personal level as to how they want judges in their area to rule. In many ways, judicial activism is taxation without representation because taxpayer money goes to support their salaries while they rule based on personal desires instead of what the local population wants to see.

The pros and cons of judicial activism show that when it is properly implemented, it can be a proper way to check and balance existing laws. It can also be a privilege that is easily abused based solely on a judge’s personal preferences. Do the benefits of such a practice outweigh the risks? That’s ultimately a personal decision to make for every judge based on whether or not they are seen making a fair decision.