Why We Need More Judicial Activism

Constitutionalism, Executive Power, and Popular Enlightenment, 2014 Forthcoming

Vanderbilt Public Law Research Paper No. 13-3

21 Pages Posted: 8 Feb 2013  

Suzanna Sherry

Vanderbilt University - Law School

Date Written: February 6, 2013

Abstract

Too much of a good thing can be bad, and democracy is no exception. In the United States, the antidote to what the drafters of the Constitution called “the excess of democracy” is judicial review. Lately, however, judicial review has come under fire. Many on both sides of the political aisle accuse the Supreme Court of being overly activist and insufficiently deferential to the elected representatives of the people. I argue in this essay that criticizing the Court for its activism is exactly backwards: We need more judicial activism, not less. Courts engaging in judicial review are bound to err on one side or the other from time to time. It is much better for the health of our constitutional democracy if they err on the side of activism, striking down too many laws rather than too few. An examination of both constitutional theory and our own judicial history shows that too little activism produces worse consequences than does too much. If we cannot assure that the judges tread the perfect middle ground (and we cannot), it is better to have an overly aggressive judiciary than an overly restrained one.

Keywords: judicial review, judges, activism, popular constitutionalism

Suggested Citation

Sherry, Suzanna, Why We Need More Judicial Activism (February 6, 2013). Constitutionalism, Executive Power, and Popular Enlightenment, 2014 Forthcoming; Vanderbilt Public Law Research Paper No. 13-3. Available at SSRN: https://ssrn.com/abstract=2213372

Suzanna Sherry (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States
615-322-0993 (Phone)

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