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Unpublished Paper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

This Article seeks to reclaim the _term_ judicial activism by exploring the _concept_ of judicial activism that underlies it. From newsrooms to confirmation hearings, judicial activism is a uniquely popular epithet condemning judicial misconduct. One goal of this Article is to dispel misperceptions about what judicial activism actually is. Popular examples include understandings of activism as (i) any exercise of judicial review, (ii) any result with which the observer disagrees, (iii) any decision purporting to enhance individual rights, or (iv) any opinion that fails to defer to actions of elected officials.

A second project is to explain in positive terms what judicial activism should mean. This requires detailed analysis of how the term judicial activism appeared and why it became popular. Such history — much of 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. 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. Accordingly, even though we may often disagree about how judges should act, 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 impacts. First, my approach 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,
  • scalia,
  • dworkin,
  • jurisprudence,
  • originalism,
  • textualism,
  • common law
Publication Date
August 26, 2008
Citation Information
Roger Craig Green. "An Intellectual History of Judicial Activism" ExpressO (2008)
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