Judicial Activism, Judges' Speech, and Merit Selection: Conventional Wisdom and Nonsense

Abstract

This article introduces three topics which were the focus of an Albany Law Review symposium devoted to current issues facing the judiciary: judicial selection methods, the free speech rights of judges, and judicial activism. Professor Vincent M. Bonventre concentrates on the latter, the perennial question cum assertion that judges and courts - and most specifically the Supreme Court and other high courts - ought simply to apply the law strictly, defer to the choices of the democratic/majoritarian branches, and restrain themselves from applying their own views. Bonventre maintains that such contentions are largely nonsensical, and shows through historical examples that the appropriate dichotomy is not between judicial activism and judicial restraint, but between judicial wisdom and foolhardiness - both of which sometimes involve restraint and sometimes activism.

Keywords: judicial activism, judicial restraint, judges, strict construction, judicial review