Judicial Activism in United States

The Constitution of the United States of America created three branches of

government: executive,
legislative and judicial. The doctrine of separation of powers vested
certain rights in each of these
branches. The system of checks and balances ensures that each branch of
the government is able to
maintain some degree of independence. These separation of power rules vest
some discretion in the
judicial branches, which means that judges are guaranteed to be able to
exercise discretion by the
US Constitution. Judges can use this discretion to decide cases, and to
make common law (also
called case law) rules where no existing rule applies. Judges can also use
their discretion to interpret
existing laws, as long as their interpretation does not conflict with the
plain language of the existing
law.21
The exact history of judicial activism in the United States of America is
unclear, but it is believed
that the concept has been around for centuries. However, it is said that a
man named Arthur
Schlesinger, Jr. brought about the term judicial activism in 1947.
Schlesinger was a specialist in
American History, and was well known for his study of 20th century
American Liberalism.
Schlesinger introduced the term in a Fortune Magazine article published
that year entitled “The
Supreme Court: 1947.” In the article, Schlesinger grouped the courts
into three categories:
(1) judicial activists, (2) champions of self-restraint, and (3) a middle
group.22
The judicial system in the United States is a system that provides courts
with the power and authority
to administer justice, though that justice must be within the bounds of
the law. As some laws in the
United States tend to be ambiguous, or lacking in specific direction as
applied to a particular case,
the court system is also responsible for interpreting the laws, and
ensuring they are applied correctly
on both the state and federal levels. While the judicial system is not
authorized by the Constitution
of the United States of America to make laws, it applies the facts of each
case to the existing laws in
order to reach a decision that ensures justice is served. In some cases,
the court is required to make
a decision about how a law should be applied to the particular
circumstances in reaching its decision.
When such decisions are made by higher courts, such as appellate courts
and supreme courts, they

21
 W. Alexis, What is judicial discretion, (Apr.30, 2020, 10:24 PM),
http://www.wisegeek.com/what-is-
judicialdiscretion.html.
22
Judicial Activism, (May. 04,2020, 12:55 AM),
http://legaldictionary.net/judicial-activism/.

13 | P a g e
become what is referred to as “binding precedent,” which means that
other courts must use the
interpretation of law of that higher court on future similar cases.23
When a court does not confine its rulings to interpretations of the law
that other reasonable judges
would make, it may be seen as creating law from the bench, rather than
applying existing laws.
Similarly, judicial activism is sometimes seen in the form of making a
ruling on an issue that is not
specifically brought to the court in a present case. It has been seen that
in the United States of
America every day, judges at every level of the U.S. legal system have to
make difficult decisions
in a wide variety of cases. This necessitates a balancing act of
interpreting existing law, referring to
existing case precedent, and ensuring that justice is brought in each
individual case. Many judges
feel that some laws, include case precedent, need to be updated to better
suit modern social structure.
In the United States, courts and judges make policy and engage in policy
decisions all the time that
is, the practice what is known as judicial activism. It can be seen in
federal courts, including the U.S.
Supreme Court, and more recently have seen it over and over again in the
state supreme courts.
Judicial activism is also seen in areas such as abortion, education,
homosexuality, nude dancing, gay
marriage, and police intrusion into people’s homes etc. Of course, this
has only scratched the surface,
in that judicial activism covers over so many more areas of society than
the few that have been
mentioned. Judicial activism will continue to be one of the means that
interest groups use to get their
desires passed into law, into the foreseeable future.24

4.1. Judicial activism through implied judicial review

Judicial activism was observed for the second time sometime in the year
1893 under the American
Constitution of 1787. Adopting an activist attitude, the American Supreme
Court claimed the power
of judicial review in the historic decision in Marbury v. Madison.25
Acknowledging the doctrine of
judicial review in the above case, Chief Justice Marshall observed that
the constitution forms the
fundamental and paramount law in countries with written constitutions
“Consequently, the theory of
every such Government must be that an Act of the legislature repugnant to
the Constitution is
void.”26

23
 Judicial Activism, (May 04, 2020 ,12:55 AM),
http://legaldictionary.net/judicial-activism/.
24
Wiseman v. Ryan- Judicial Politics:Examples of Judicial Activism in the
United States, (May 10, 2020, 1:25 AM),
http://www.bloomp.net/articles/judicial_politics_judicial_activism.htm.
25
Marbury v. Madison, 5 U.S. 137, (1801)
26
AIR 1951 SC 318

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Interestingly, the original American Constitution of 1787 did not contain
an express provision for
judicial review. However, judicial activism implied such power through a
harmonious construction
of Article III and VI. The supremacy of the American Constitution was
implied by reading Section
2 of Article VI whereas the power of judicial review of the American
Supreme Court was implied
by reading Section 2 of Article III. These judicial implications were
clearly in tune with the intention
of the framers of the American Constitution. The majority of the
Constitution framers in the
Philadelphia Convention, 1786 believed that a specific provision was not
required because the power
of judicial review was clearly implied in the language of Article III and
VI. 27
Like the American Supreme Court the Indian Supreme Court had asserted its
power of judicial power
but unlike the U.S. Constitution the Constitution of India contains
express provisions for judicial
review.

4.2. Judicial Review of Legislations

While British judicial activism was directed against the executive,
American judicial activism was
directed mainly against the legislature. Judicial review of Congressional
legislations was not used
by the American Supreme Court till 1857. In 1857, in Dred Scott v.
Stanford28 the Supreme Court
for the first time used its power to review and strike down a
Congressional legislation, the Missouri
Compromise of 1820 as unconstitutional. Judicial activism, however, was
restricted during the
American Civil War of 1861. After the American Civil War of 1861, the
Supreme Court assumed
an aggressive form of activism as it struck down twenty-four Congressional
legislations as
unconstitutional either wholly or partially.29
Unlike the American Supreme Court, the Indian Supreme Court had adopted a
positivist attitude in
invalidating the legislations passed by the Indian Parliament. This was
particularly during the pre–
emergency Nehruvian period.
The New Deal period of 1930 saw another phase of the Supreme Court’s
aggressive activism. The
Government’s socio-economic reforms during the New Deal period served as
the main catalyst for
the Court’s activism.30 In one such decision in Perry v. U.S 31
the
Supreme Court declared “the

27
 VISHNOO BHAGWAN & VIDYA BHUSHAN, (EDS.), WORLD CONSTITUTIONS – A
COMPARATIVE STUDY 268 (2007)
28
Dred Scott v. Stanford, 60 U.S., 393 (1857)
29
Id. At 23
30
W. FRIEDMANN, LAW IN A CHANGING SOCIETY, 62 (2nd ed. 2008).
31
(1934) 214 U.S. 330 (353)

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Congress cannot invoke the sovereign power of the people to override their
will as thus declared.”
Not only the Congressional laws of far-reaching importance struck down in
quick succession but the
Government was criticized for its New Deal measures on the ground that it
represented bad
economies and bad government.32 Such form of judicial activism
was unacceptable. In order to
implement the New Deal programme President Roosevelt after getting
reelected for the second term
in 1936 decided to reorganize the federal judiciary.33 However,
rejuvenation of the Supreme Court
could not take place but the President was able to get his nominees
elected to the Supreme Court.
The Supreme Court remained subdued as it reversed its previous decisions
by upholding the New
Deal statutes.
During the period of the Great Depression in the 1930s in the United
States, the US Supreme Court
invalidated a series of legislative measures taken by the Government under
the so-called “New Deal”
program.98 These legislations were intended to directly address the
problems arising from the Great
Depression by generating employment, obligating minimum wages, safe
working conditions and
other social welfare measures.
However, these legislations were struck down by a majority of the Judges
on the premise that they
interfered with the doctrine of freedom of contract and were, therefore,
contrary to the then current
philosophy of laissez faire.34 The activism of the Judges in striking down
such obviously valid
legislation contributed to the elongation of the Great Depression leading
to unavoidable loss of life
and misery for millions of people. This judicial attitude led the US
President Franklin Roosevelt to
threaten to pack the Supreme Court with Judges who would show restraint
and accept the legislative
wisdom of the New Deal.35

4.3. Preferred Freedoms

American judicial activism has advocated the doctrine of â€p̃referred
freedoms’. The doctrine first
mooted by late Chief Justice Stone proposes that certain freedoms in the
United States Constitution
i.e. those guaranteeing the basic personal liberties might be more
fundamental than any concerned
with changing processes of economic and social organization.36

32
VISHNOO BHAGWAN & VIDYA BHUSHAN, (EDS.), WORLD CONSTITUTIONS – A
COMPARATIVE STUDY 268 (2007)
33
 Id at 28
34
The most famous case being that of Lochner v. State of New York, 198 US
45 (1905), which has led to the modern
derogatory epithet of "Lochnerism" to describe any "activist judgment".
35
ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF
THE LAW, 53-56 (1990).
36
W. FRIEDMANN, LAW IN A CHANGING SOCIETY, 69 (2nd ed. 2008).

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This approach has been supported by Justice Black, Douglas and Warren. In
a number of decisions
or dissents, Chief Justice Stone upheld freedom of speech and expression
against the encroachments
of national–security legislation or of other legislative efforts.37 One
such glaring illustration is the
decision cited in New York Times v. United States.38 The New York Times
had obtained copies of
a highly confidential government document concerning the history of US
involvement in Vietnam
War by improper disclosure. The Government restrained the publication of
those copies. The
majority of the court led by Black J. held that the First Amendment
unconditionally prohibited the
abridgement of â€t̃he freedom of speech’ or â€õf the press’ and that no
considerations of national
security empowered the Executive to restrain publication. But a dissenting
judgement was given by
three judges including the Chief Justice “In the dissenting judgement of
Harlan J, the court was
probably over-stepping the boundaries of judicial restraint in matters of
national security, which
were primarily the responsibility of the Executive”.39 “Another
Justice Frankfurter has regarded
any â€p̃referred freedom’ philosophy as a dangerous over-simplification
of a complex process of
legislative experimentation.”40 However, Jurist Raoul Berger believes
that a democratic system rests
on full access to information and accountability to the people.41 Speaking
on the executive refusal
to disclose matters relating to Vietnam war Justice Potter Stewart
commented that “when the people
and the representatives are reduced to ignorance the democratic process is
paralyzed.”42
It is surprising to find that American judicial activism has received
criticisms among the judicial
circle. The American Supreme Court’s preference to the doctrine of
â€p̃referred freedoms’ has been
found incompatible with the need for self-restraint by a non-elected
court.43 A non-elected court had
no business to interfere either with policy-making or policy-execution.
The doctrine of â€p̃referred freedoms’ is not applicable in India since
the Constitution of India
describes the specific freedoms guaranteed by the Constitution and the
restrictions that can be
imposed on it.