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Introduction
Judicial activism is defined as a form of judicial philosophy that motivates judges to move away from strict adherence to judicial precedence in preference to progressive and new social policies which are not always consistent with the restraint of appellate judges. Judicial activism decisions in some circumstances therefore may be intrusions into the legislative and executive affairs. According to the Merriam Webster’s dictionary of law, judicial activism is the action of protecting or expanding of an individual’s rights through the enforcement of decisions that are not in line with the established precedence or such decision which are opposite to the constitutional or legislative intent (Mane, n.d.).
Discussion
Conservative View: The principle of judicial activism has been constantly opposed by conservatives since they consider it as a process of selecting a particular freedom as a scheme to hand down rulings that can have the effect of expanding personal freedoms. Consequently, there is a fear that the stare decisis doctrine can sometimes be applied to erode the original word or to change the intention of the text so as to make it more malleable. The opponents of judicial activism argue that it goes beyond the normal constraints that the constitution, which is a supreme law, gives to the jurists regarding the right to water down any legislation that is perverse to the constitution. Consequently, those critical of judicial power argue that it can displace and override existing laws or may lead to unnecessary legal uncertainty. The principle of judicial activism can violate the principle of separation of powers since it has been interpreted as legislation from the bench which amounts to judicial tyranny or judicial dictatorship (Mane, n.d).
Liberal Perspective: The liberals argue that any living constitutions should be flexible and any constitutional philosophy endorses any ruling as long the judge is able to justify that the particular ruling can contribute to the growth and the evolution of the constitution. Notwithstanding this argument, judicial activism amounts to blatant violation of the judges’ oath of office and their sworn allegiance to uphold the constitution. Any judge who administers a ruling by applying the principle of judicial activism is an explicit indication that such a judge is not interpreting the constitution and it will in turn lead to the public perception that the judges are writing their own constitution and this has the net effect of creating skewed and unpredictable rulings (Chemerisnsky, 2010).
The epitome of judicial activism was the Brown vs. Board of Education. This ruling was considered activist in form because all the laws that required racial segregation were declared unconstitutional and all the precedents that had upheld such laws were overruled (Chemerisnsky, 2010). The most recent cases decided by judicial activism were the District of Columbia vs. Heller which was a gun ruling case. In this case, the Supreme Court considered the provisions of the second amendments regarding the right to bear arms as an individual right as opposed to a right tied to a well regulated militia (Bookman, 2010). The Supreme Court has been castigated for applying judicial activism in determining cases. The doctrine of judicial activism also poses problems to direct enforcement of justice (Roosevelt, 2008).
Conclusion
Judicial activism is considered a form of personified justice and therefore viewed as an inherent judicial principle. Judicial activism rulings by the Supreme Court have been political talk points and there should be a way of determining as to when a charge is justified or not.
References
Bookman, J. (2010). Latest gun ruling a case of conservative judicial activism. Bookman Blogs. Web.
Chemerisnsky, E. (2010, January 22). Conservatives embrace judicial activism in campaign finance ruling. Los Angeles Times, p. 1.
Mane, A.D. (n.d.). Judicial Activism: A Theory of Judicial Philosophy. Articles on Juries Prudence. Web.
Roosevelt, K. (2008). The Myth of Judicial Activism: Making Sense of Supreme Court Decisions. New Haven, CT: Yale University Press.
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