Policy Documents

How to Spot Judicial Activism: Three Recent Examples

Elizabeth Slattery –
June 13, 2013
The courts have gradually abandoned their proper role of policing the structural limits on government and neutrally interpreting the laws and constitutional provisions without personal bias. Judicial activism occurs when judges decline to apply the Constitution or laws according to their original public meaning or ignore binding precedent and instead decide cases based on personal preference. Labeling as “activist” a decision that fails to meet this standard does not express policy disagreement with the outcome; it expresses disagreement with the judge’s conception of his or her role in our constitutional system. Three recent cases illustrate how our Founding Fathers’ vision of a government of laws and not of men is compromised when judges let their subjective policy preferences control their decisions.