Activism: n. Odious ruling – Definition of judicial activism

By Brandon Ortiz  HERALD-LEADER STAFF WRITER
The term judicial activism has been a buzzword ever since the U.S. Supreme Court’s ruling in Roe vs. Wade.

Just last week, conservatives used the term to decry a New Jersey Supreme Court decision ordering the state’s legislature to allow either civil unions or same-sex marriage.

Liberals have also begun to use the term. They’ve argued that President Bush wants to nominate to the federal appeals courts judicial activists who will overturn Roe vs. Wade and weaken environmental and labor regulations.

The term has been used frequently in the Kentucky Supreme Court race between Justice John Roach and Judge Mary Noble. They are running for the 5th District seat, which includes Fayette and 10 other counties.

But what does judicial activism mean?

Ask 10 different scholars, and you’ll get 10 different answers.

“I would not use the term activist in any situation. It has become such an overused word,” said University of Kentucky law professor Paul Salamanca, a member of the conservative Federalist Society.

“Too many times it is just an easy way to say ‘I don’t like what the court did, therefore it is activist.’”

Roach says a better term is judicial supremacy, the belief that courts have “the ability to decide every case and tell everyone what the ruling is in every case without acknowledging that the other branches of government have a role to play in our government.”

“We have a responsibility not to interfere, encroach or take away the other branches of government’s power,” he said.

But the term “judicial activism” has been used for several U.S. Supreme Court decisions that are now celebrated, such as Brown vs. Board of Education, which outlawed racial segregation in schools.

Noble says activism is when the court changes the law simply because it wants to, either to effect social change, to overturn a previous precedent or because of political leanings.

But “if you listen to the talk shows, judicial activism is what somebody else is doing, not what you’re doing,” Noble said at a recent debate. “If you do it, it is wisdom and courage and strength. But if they do it, it is activist.”

In a study on judicial activism that has garnered national attention, UK law professor Lori Ringhand defined activism as striking down a federal or state law or overturning existing precedent.

Roach and Salamanca disputed that definition. Salamanca said it ignores instances where the Supreme Court legitimately struck down a law.

But her definition, Ringhand wrote, avoids inherently subjective definitions that rely on “contested theories of constitutional interpretation.”

“At best, (judicial activism) is used to describe a judicial opinion with which one disagrees,” Ringhand wrote. “At worst, it is brandished as a rhetorical tool, intended to circumvent substantive debate about deeply contested issues.”

 

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