Whats Judicial Activism

  • During the confirmation hearings for Elena Kagan, the topic of "judicial activism" popped up
  • It may mean different things to different people, but generally judicial activism is when a judge does more than just interpret the law
  • Is judicial activism a violation of separation of powers or a reflection of changing times?
  • You can help shape the judicial branch


Judges play critical roles in the US justice system. They keep in order in the court, decide what evidence parties can and can't use to prove their cases, and, unless a jury is involved, decide who wins and loses a case. Sometimes, judges do more than what they're supposed to do.

Judicial Activism

During the Senate confirmation hearings of Elena Kagan, she and Senator Graham discussed "judicial activism." The term may mean different things to different people, however, ultimately, when asked her opinion about another judge's comment that judges may change a law so that it "suits new social needs," Ms. Kagan said she disagreed. Judges can't change the law.

That's is stark contrast to what Justice Sotomayor once said long before she became a member of the Supreme Court. You may recall her comment at a conference that "policy is made" in some federal courts.

That's the essence of judicial activism. It's when a judge's decision in a case is based upon her personal social or political beliefs, rather than an interpretation of the law as it exists. In effect, the judge changes the law. Rather than saying a certain action or behavior is legal or illegal under the law as written, a judge may say the action or behavior should be legal or shouldn't be illegal. Not long after such a decision, the law may be changed to fit the decision.

Some people feel Roe v. Wade is a classic example of judicial activism. The US Supreme Court created the right to abortion out of a "right to privacy" that's not specifically mentioned in the US Constitution. Some say this interpretation of the Constitution was beyond the Court's reach. In effect, the Court created a law on a national level rather than a state level, whose decision many feel it should have been.


The debate over the courts "making law" centers on separation of powers. In our form of government, the courts interpret and apply the law to the facts and circumstances of each case. The legislative branch makes the law. So, the is when the courts make the law through judicial activism, they're exercising power they don't have.

In the abortion example, many argue, state or federal lawmakers, and not the courts, should make abortions legal or illegal. We elect our lawmakers to represent us, and we hold them accountable. If we don't like the laws they make we can choose not to re-elect them. Federal judges, and some state judges, are appointed, not elected, and we can't hold them accountable for any laws they "make."

On the flip side, some say judicial activism is nothing more than the courts interpreting and applying the law to our constantly changing and evolving society. The laws, and especially the US Constitution, are living things that must change with the times.

Where Do You Stand?

Do you have an opinion about judicial activism? If so, do some research on a judicial nominee and contact your elected officials in the US Senate and House of Representatives, or state lawmakers, and let them know what you think. And at election time, learn how your local judges have ruled on issues important to you and think before you go to the voting booth.

Like it or not, judges often impact how the laws effect you. When possible, then, you should do whatever you can to help shape the judicial branch.

Questions for Your Attorney

  • Do judges listen to the opinions of ordinary people like me when deciding a case?
  • Can you pick and choose which judge will hear our case based on your idea of whether or not a judge is an activist?
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