Judicial Activism

Abstract

Judicial activism is a conceptually fuzzy, but for that reason, rhetorically powerful term. No one has ever defined it in a way that has enjoyed widespread support. Deployed as a descriptive term for a judicial decision or a series of judicial decisions it is meaningless without further specification. It is therefore virtually useless as an analytic category in assessments of a court’s record. As a term of political rhetoric, however, it has proven to be much more powerful, enjoying a long career in the United States and then an equally glamorous career outside that country. In that form, it shows no signs of going away. For comparative lawyers, the challenge is to examine why that has been the case, and how it is that such an ill-defined term has come to enjoy such importance in so many different countries in which the institution of judicial review has been adopted.

Keywords: Judicial activism, Schlesinger, Warren Court, judicial review