Judicial activism is a term people use to describe when judges apply substantive due process (what the law says) in way that seems (at least to some) to make the law say something the legislative branch never intended. You’ll remember from our discussion on due process that Roe v. Wade is often viewed as an example of excessive interpretation, or judicial activism.
Judicial activism is usually used in a negative way– when people disagree with a court’s decision, they claim the court has gone too far, and that the court is taking over the role of the legislature. While judicial activism is a phrase usually used by conservatives to claim liberal judges have gone too far, the phrase has recently been used by liberals to claim conservative judges are using the power of court rulings to twist the law as well– many liberals claim the Supreme Court’s conservatives did exactly this when they agreed to hear Bush v. Gore, the case in 2000 that decided the presidential election.
Your task here is to read these two articles:
Then, post answers to these questions:
- Both articles are claiming judicial activism is being used unfairly. Summarize the argument of each author.
- Give one example from each article where the author is showing some kind of bias.
- Which author do you agree with? Which do you disagree with? Why?