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Unpublished Paper
An Intellectual History of Judicial Activism
ExpressO (2008)
  • Craig Green

This Article seeks to transform how readers view judicial activism. From newsrooms to confirmation hearings, judicial activism is a uniquely potent and popular epithet condemning judicial misconduct. By contrast, most legal scholars either eschew activism-talk as too vague, or they adopt unsound definitions of the term as (i) any exercise of judicial review or (ii) any unfavorable result. These trends have segregated normative debates over judicial activity, with solidly unfortunate results.

This Article reclaims the term judicial activism by exploring the concept of judicial activism that underlies it. One goal of this Article is to dispel widespread misperceptions about judicial activism. Examples include activism's alleged link to increasing individual rights or decreasing deference to elected officials.

A second project is to explain in positive terms what judicial activism should mean. This requires detailed analysis of how judicial activism appeared and why it became popular. Such history — which is collected here for the first time — shows that judicial activism is best interpreted to mean a departure from cultural standards of judicial role.

My last step is to analyze how standards of judicial activism are formulated. Contrary to such popular methodologies as originalism, analytical jurisprudence, and Scalian-ism, I propose that judicial role is a thoroughly contextual, institutionalized concept. Discussions of judicial activism weave together selective histories and synthetic principles to build the vital cultural bonds that hold judges within their proper role. Thus, even though we may often disagree about how judges should act, such discussions of judicial activism are themselves indispensable to our system of independent and unsupervised judges.

Beyond this Article's implications for legal rhetoric and reasoning are two practical consequences. First, it seeks to resolve the deep schism in debates over judging that separates legal thinkers who use terms like "activism" from those who do not. Especially with the imminent likelihood of new Supreme Court appointments, legal scholars' ability to be heard in the political arena may depend on their ability to understand and perhaps reform the term judicial activism. Second, this Article hints at future research concerning executive lawmaking through the administrative state. If the concept of judicial activism can be salvaged from misuse and confusion, perhaps the time for analysis of "executive activism" may be near at hand.

  • judicial activism,
  • judicial role,
  • federal courts,
  • legal history,
  • scalia,
  • dworkin,
  • originalism,
  • textualism,
  • legal culture
Publication Date
August 20, 2008
Citation Information
Craig Green. "An Intellectual History of Judicial Activism" ExpressO (2008)
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