The nearest to an objective definition of judicial activism is the overriding by the court of a state or congressional law, or the reversal of one of the court's own precedents. Judicial restraint is even less easy to define objectively, since the logical opposite of activism would be inactivism, but no one advocates that the court should be completely inert. Advocates of judicial restraint would argue that the court should only intervene in the most egregious cases of constitutional violation, but the problem of securing agreement over whether any particular case constitutes such a violation is obvious.
Judicial activism is an approach to the interpretation of the Constitution. It has two key components:
· justices use their own views and values in order to achieve their own social or political goals
· activism involves the court overturning other political institutions or the precedent of previous courts.
This activism might reflect itself in the approach of an individual justice who is associated with a particular stance, which they use to challenge political institutions. However, it is most forceful when used by the majority on the Court, and is most easily seen over a series of cases where justices consistently appear to be attempting to challenge political institutions.
A judicially active court is likely to have a major impact on public policy. Judicial activism is associated with the Warren Court 1953-69, which gave a series of rulings that promoted civil rights, typically at the expense of state law. This civil rights agenda can be seen in cases such as Brown v Board of Education 1953 and Miranda v Arizona 1966. The Roberts Court has consistently ruled against campaign finance regulations — for example, in the Citizens United and McCutcheon cases — suggesting it is using its interpretation of the 1st amendment to promote conservative judicial activism.
There is considerable debate about how activist the courts should be and the term ‘judicial activism’ is often used pejoratively about any decision and the extent of judicial activism seem s to be in the eye of the beholder. Conservatives criticise the Miranda decision and liberals criticise the Citizens United decision. In this sense ‘activist’ judges are simply judges who make, in the view of the person speaking, the wrong decision. Critics of an activist Court might say that the justices are ‘legislating from the bench’ or that America now has an ‘imperial judiciary’ or 'Judicial tyranny'. However, the accusation that judges should not make political decisions remains.