Last Updated on November 9, 2022 by Lily Connel
Judicial activism is the lobbying of judges to legislate from the bench. It is an attempt to make a judicial decision that is not only outside the scope of their authority but directly contrary to the will of the people. On the other hand, this is dangerous because it leads judges to make decisions that are not only outside their jurisdiction but in contradiction with the plain meaning of a statute, even if such a decision would be good policy.
Pros and Cons of Judicial Activism – The Competition Table
| Serial | Pros of Judicial Activism | Cons of Judicial Activism |
| 1. | The judicial branch is a system of checks and balances to the other powerful branches of government. | The legislature passes bills over the course of months or years. |
| 2. | It accentuates required innovation by way of a solution. | It limits the functioning of the government. |
| 3. | Judges often step in when laws are unclear and use their own personal judgment to create a fair and just outcome. | The new law clearly violates the law that limits the power of the constitution. |
| 4. | The decision is up to the judges and we will find out what they think. | Judges are supposed to use a set of standards to rule on each particular case. These standards are known as precedents. |
| 5. | The words of the Judges’ oath do not change with the times. | Some judges make decisions that are not fair. These decisions can hurt the general public. |
| 6. | Activism is a key concept in the judiciary. It ensures that the government is kept honest. | The repeated intervention of courts in issues of the government can diminish the faith of citizens in the quality of the government. |
| 7. | Activist judges make decisions based on their personal opinions about the law. | In some cases, the law needs to be changed. |
| 8. | When judges create new laws, they can help create a safer society. | When the justice system is too involved in politics, it creates a perception that the government is not capable of handling its own affairs. |
| 9. | Judicial activism can solve injustice. | Judicial activism also creates problems when it comes to appointing Supreme Court justices. |
| 10. | A court may make a decision that will create more constitutional laws. | Sometimes judges make decisions that don’t turn out well. |
Pros Of Judicial Activism
1) Allows Personal Discretion
Judicial activism allows judges to make decisions based on their personal interpretation of the law. A judge can be more liberal or conservative, allowing them to make decisions that would not normally be made by a judge who is only considering the law and the facts of the case at hand. This allows judges to think outside of the box and find creative solutions to controversial issues.
2) Creates a Safer Society
Judicial activism can help create a safer society. In most cases, if a law is deemed unconstitutional, then it will not be enforced in court. This allows judges to create laws that are more fair and beneficial for society as a whole.
3) Creates Fair Laws
Judicial activism can help create more fair laws. For example, judges who are not in favour of the death penalty can make a law abolishing it. This would allow judges to make more fair laws that they believe are beneficial to society.
4) Creates More Constitutional Laws
Judicial activism can help create more constitutional laws. For example, judges who are against the death penalty can make a law abolishing it. This would allow judges to make laws that are more fair and beneficial for society as a whole.
5) Creates More Creative Solutions
Judicial activism can help create more creative solutions to controversial issues. For example, if a judge believes that abortion is not right and should be illegal, they could go against their beliefs and make a law banning abortion in their state or country. This would allow judges to create laws that they believe in rather than following the rules of the law.
6) Allows Judges To Think Outside Of The Box
Judicial activism allows judges to think outside of the box. For example, a judge may disagree with the death penalty and not enforce it. This would allow judges to make laws that they believe in rather than follow the rules of the law.
7) Empowers The Judiciary
Judicial activism allows judges to empower the judiciary. For example, a judge may disagree with the death penalty and not enforce it. This would allow judges to make laws that they believe in rather than follow the rules of the law.
8) Makes Judges More Informed
Judicial activism can help make judges more informed about controversial issues. For example, if a judge believes that abortion is not right and should be illegal, they could go against their beliefs and make a law banning abortion in their state or country. This would allow judges to create laws that they believe in rather than following the rules of the law.
9) Upholds The Rights Of Citizens
Judicial activism can help uphold the rights of citizens. For example, a judge may believe that abortion is not right and should be illegal. This would allow judges to make laws that they believe in rather than follow the rules of the law.
10) Engine For Societal Reforms
Judicial activism can help engine for societal reforms. For example, a judge may believe that abortion is not right and should be illegal. This would allow judges to make laws that they believe in rather than follow the rules of the law.
11) Creates An Equal Society
Judicial activism can help create an equal society. For example, a judge may believe that abortion is not right and should be illegal. This would allow judges to make laws that they believe in rather than follow the rules of the law.
Cons Of Judicial Activism:
1) Compromises The Rule Of Law
Judicial activism compromises the rule of law. The rule of law is the fundamental principle that no person should be subjected to the arbitrary power of any other person, whether it be an elected official or a judge. The rule of law is based on the concept that all people are equal and have equal rights under the law regardless of their social status or wealth. Only an act that goes against this principle can be considered as violating the rule of law. Judicial activism undermines this principle and gives judges unlimited power to decide what laws are constitutional and what laws are not, which would inevitably lead to chaos in society.
2) Alienates Voters From Government
Judicial activism alienates voters from the government by creating a perception that government officials do not know what they are doing or what is best for the people. Voters are not satisfied with the government because when they ask officials about their policies and actions, the officials tell them that they do not know what to do and that they are only doing what the judge told them to do. This makes voters believe that their government is incompetent, which causes them to vote out of anger instead of voting for candidates who promise to solve problems, which will ultimately lead to a decline in voter turnout and a decline in the quality of governance.
3) Forces Compromise
Judicial activism forces compromise by making it difficult to pass laws because judges will always find a way around laws that are unconstitutional. Judges have wide discretion on what constitutes unconstitutional laws, which gives them more power than legislators. Judges will always find a way to pass laws that favour certain people or groups over others, which makes it difficult for the law to pass.
4) Blocking Of Supreme Court Nominees
Judicial activism also causes problems when it comes to Supreme Court nominees. If judges are allowed to make laws without being held accountable by the legislature, then they can use this power to block the appointment of Supreme Court nominees. In order for a judge to block a Supreme Court nominee, they must be able to convince three-fourths of the judges on their court that the nominee is not fit for the position. Judges will use this power in order to protect their own interests and keep themselves in power and that is why judicial activism is bad because it will always result in the blocking of Supreme Court nominees.
5) Unintended Consequences
Judicial activism has some unintended consequences. One unintended consequence of judicial activism is that it gives people too much power to overrule laws that were passed by the legislature. Judges are only allowed to overturn laws if they are unconstitutional and were not approved by a majority of the people. However, if judges find themselves in a situation where they have to decide between their own personal interests and the interests of the people, then it will be very easy for them to override laws that do not suit their interests. This is why judicial activism is bad because judges will always find themselves in a situation where they have to make decisions for the good of society and not for their own personal benefit.
6) The Rule Of Law Is Under Attack
Judicial activism is bad because it undermines the rule of law. The rule of law is a system where all laws are created by the legislature and then approved by the people, which means that legislators have to make laws that are constitutional and are approved by a majority of the people.
Brief History Of Judicial Activism
In his first constitutional amendment, James Madison, who was probably one of the founding fathers’ most conservative thinkers, said: “No person ought to be permitted to be a judge in his own cause.” This has been interpreted by courts as meaning that judges cannot do anything outside their jurisdiction and must follow existing laws rather than legislate from the bench.
This understanding of the amendment has been consistently rejected by the Supreme Court. In the 1995 case of Morrison v. Olson, Chief Justice Rehnquist wrote: “The constitutional provision at issue is not limited to judges in general and applies equally to those who sit on the federal bench.”
In 2004, in a decision called Hamdan v. Rumsfeld, Justice O’Connor rejected the idea that judges cannot act outside their jurisdiction: “The Constitution does not restrict what judges may do if they conclude that a statute is unconstitutional or unconstitutionally applied…Our cases make clear that judges are responsible for enforcing and administering constitutional law, and that responsibility includes deciding whether a statute is constitutional or unconstitutional…Judges may not, of course, simply make up new law; but neither should they be prohibited from making judgments about the meaning of the law.”
In 2008, in a case called Gonzales v. Raich, Justice Roberts wrote: “Judicial activism is often defined as judicial action that goes beyond what the text and structure of a statute require, but this definition fails to provide a coherent account of judicial authority because it fails to distinguish between legitimate and illegitimate uses of judicial power.”
Conclusion
However, if judges start making laws without being held accountable by the legislature, then this will make it impossible for legislators to pass laws that please a majority of people. This will ultimately lead to an erosion in political support and a decline in the quality of governance, which means that judicial activism is bad because it will eventually lead to a decline in political support and quality of governance.
