Comparing Judicial Activism – Can We Say that the US Supreme Court is More Activist than the German Constitutional Court?

Revista Portuguesa de Filosofia (RPF), Special Issue on Democracy in Question, vol. 72 (4), 2016

Texas A&M University School of Law Legal Studies Research Paper No. 17-07

17 Pages Posted: 19 Dec 2016 Last revised: 14 Jan 2017

See all articles by Nuno Garoupa

Nuno Garoupa

George Mason University - Antonin Scalia Law School, Faculty

Date Written: December 19, 2016

Abstract

Although widely used, “judicial activism” is a diffused and, to some extent, an empty concept. However, if it is to be useful in comparative law and politics, a transparent and consistent definition of “judicial activism” has to be developed. We assess different approaches and the consequent comparative implications. We conclude that, at some levels, we can answer whether or not the US Supreme Court is more activist than the German Constitutional Court. Nevertheless, such question cannot be addressed satisfactorily once we understand the complexities of “judicial activism.”

Keywords: judicial activism, constitutional review, constraint, restraint

JEL Classification: K0

Suggested Citation

Garoupa, Nuno, Comparing Judicial Activism – Can We Say that the US Supreme Court is More Activist than the German Constitutional Court? (December 19, 2016). Revista Portuguesa de Filosofia (RPF), Special Issue on Democracy in Question, vol. 72 (4), 2016; Texas A&M University School of Law Legal Studies Research Paper No. 17-07. Available at SSRN: https://ssrn.com/abstract=2887650

Nuno Garoupa (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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