The context for understanding contemporary political debates regarding judicial power is provided by a proper account of the theory and history of judicial review. Judicial review is not the limited power now that it was in 1789; it has been transformed into something new and completely different. It is impossible to understand current debates -- such as bitterly contested judicial nominations and the problem of judicial activism -- without understanding this all-important shift. Continue reading...
What is judicial activism? Does it occur anytime a law is struck down? Does it happen when judges replace the law with their policy preferences? Or is activism just a meaningless term liberals and conservatives sling at each other? To discuss this timely topic, Jeffrey Rosen, Prfoessor at George Washington University Law School will debate Heritage’s own Robert Alt, who testified on this topic during Elena Kagan’s hearing. To watch the debate, click here.
Liberals are currently engaged in a concerted effort to redefine judicial activism. Rather than accepting the true definition of judicial activism—when a judge applies his or her own policy preferences to uphold a statute or other government action which is clearly forbidden by the Constitution—liberals now apply the term anytime a statute is struck down or when a court delivers an unfavorable decision. This new tactic is on full display in the Left’s response to two major Supreme Court cases: Citizens United v. FEC and Ledbetter v. Goodyear Tire & Rubber Co. To continue reading, click here.
Judicial activism occurs when judges write subjective policy preferences into the law rather than apply the law impartially according to its original meaning.
There are nine types of Judicial Activism: