What is judicial activism? Who is a judicial activist?

By Vincent P. Tassinari
web posted December 18, 2000

Judicial activism comes down to making law. Among other formats, a law can be in the form of a state statute, a federal statute, or the U.S. Constitution. Article I, section 8, clause 18 of the U.S. Constitution states that Congress shall have the power to make all law. Every state Constitution has a similar provision.

If a judge makes law, then that judge is a judicial activist who engaged in judicial activism. If a judge implements the law as enacted by the legislature, then that judge is doing their job.

This leads to the question: what does it mean to make law? Making law comes down to two things: (i) creating the language of a law and (ii) giving meaning to the language terms in a law. The debate on judicial activism comes down to the second part: (ii) giving meaning to the language terms in a law.

If a judge gives a meaning to a language term in a law, then that judge is making law and is a judicial activist.

So what is the difference between "giving meaning" to a language term in a law and "implementing" the legislator's meaning of a language term in a law? The answer lies in the evidence a judge selects to assert a meaning of a language term in a law.

Evidence can either come from one of two sources. The first source (intrinsic evidence) is from the legislators themselves. For example, Congress uses the Congressional Record to record its evidence of its meaning of a language term in a law. The second source is from everywhere but the Congressional Record. The second source (extrinsic evidence) includes dictionary definitions, previous court opinions, the writings of legal scholars, and the judge's personal beliefs.

If a judge uses the second source as the evidence of the meaning of a language term in a law, then that judge will give his/her own meaning to the language term in a law. Here, the judge is a judicial activist engaged in the practice of judicial activism.

If a judge uses the first source as evidence of the meaning of a language term in a law, then that judge will implement the legislator's meaning of the language term in a law. Here, the judge is performing the job for which they were hired.

How do I spot judicial activism? In a court issued opinion, look at the source of the evidence that the judge uses to give meaning to a language term in a state statute, federal statute, or the U.S. Constitution. If the source of the evidence is from dictionary definitions, previous court opinions, the writings of legal scholars, or the judges personal beliefs, then you have just found an example of judicial activism.

For follow up reading, see The Statutory Term Analysis (STA) Method at http://www.dcl.edu/lawrev/98-4/tassinari.htm

Vincent Tassinari is an attorney in private practice.

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