An Intellectual History of Judicial Activism

Abstract

Over the past six decades, the term "judicial activism" has become an immensely popular tool for criticizing judges' behavior. Despite the term's prominence, however, its meaning is obscure, and its origins have been forgotten. This article seeks to correct such deficiencies through a detailed conceptual and historical analysis of judicial activism.

First, the article analyzes legal rhetoric, describing the post-war origins of the phrase "judicial activism," its eighteenth- and nineteenth-century prehistory, and its rise to prominence in the late twentieth-century. Second, the article rejects as incoherent modern definitions of judicial activism, and instead describes a functional "concept" of activism based on unenforced norms of judicial propriety. Because judges make many decisions without supervision by other public officials, debates over judicial role are crucial to our legal system's operation. These debates - regardless of whether they use the word "activism" - illustrate why the concept of judicial activism remains inescapably important. Third, the article offers a two-part, common-law method of determining whether particular decisions or judges are activist. This method contrasts with other ways of evaluating activism such as textualism, originalism, and jurisprudential theory. If widely adopted, the proposed approach to judicial activism might yield clearer perceptions of judicial behavior and might reduce destructive schisms between expert and non-expert discussions of judicial role.

Keywords: judicial activism, judicial role, judicial history, legal history, federal courts, scalia, dworkin, schlesinger