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

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