Judicial activism is when courts do not confine themselves to reasonable interpretations of laws, but instead create law. Alternatively, judicial activism is when courts do not limit their ruling to the dispute before them, but instead establish a new rule to apply broadly to issues not presented in the specific action. "Judicial activism" is when judges substitute their own political opinions for the applicable law, or when judges act like a legislature (legislating from the bench) rather than like a traditional court. In so doing, the court takes for itself the powers of Congress, rather than limiting itself to the powers traditionally given to the judiciary.
In this regard, judicial activism is a way for liberals to avoid the regular legislative means of enacting laws in order to ignore public opinion and dodge public debate.
Courts in California — both state and federal ones — frequently engage in judicial activism. One major example of this is the relatively recent California Supreme Court decision In re Marriage Cases, wherein four California Supreme Court justices (who are appointed, not elected) unilaterally overruled the will of the people of the state of California, and legalized gay "marriage." Proposition 22, which recognized the traditional definition of marriage had previously been put in place by a majority of California voters, but this did not deter the liberal judges of the court from acting. In response, a majority of California voters passed Proposition 8, which amended California's Constitution to uphold the sanctity of marriage, stemming the tide of the liberal homosexual assault on marriage before it was too late.
Judicial activism should not be confused with the courts' Constitutionally mandated rule in enforcing limitations on government power and preserving the Constitutional structure of government, as they did in Bush v. Gore, Boy Scouts v. Dale, and D.C. v. Heller, and as the Supreme Court of the United States should have done with ObamaCare.
Judicial activism can occasionally have a positive impact, although this impact can typically be better achieved by other methods. Many have cited Bolling v. Sharpe, the companion case to Brown v. Board of Education, which desegrated schools in Washington, D.C. as an example. The Equal Protection Clause, which was cited in Brown, does not apply to the District of Columbia, only to the States. However, the Supreme Court unanimously ruled that segregated schools in the city were still unconstitutional because it was also a violation of the due process clause of the Fifth Amendment. Although the impact was clearly desirable, the due process clause typically only applies to legal processes such as criminal trials, not to segregation. Also, the same result could have been achieved simply by an act of Congress, since they have control over the District's school system. Legal scholars Cass Sunstein and Randy Barnett agreed in a debate that it was hard to reconcile the ruling with the Constitution, in spite of its positive impact. These rare cases are therefore among the hardest for the Supreme Court to decide.
- Griswold v. Connecticut - 1965 Supreme Court ruling establishing a constitutional right to posess, distribute and use contraception.
- Roe v. Wade - 1973 Supreme Court ruling establishing a constitutional right to abortion.
- Lawrence v. Texas - 2003 Supreme Court ruling establishing a constitutional right to sodomy.
- Obergefell v. Hodges - 2015 Supreme Court ruling claiming a constitutional "right" to same-sex "marriage".
- The Nicaraguan Supreme Court ruling allowing incumbent president Daniel Ortega to contest the 2011 election. The Nicaraguan constitution forbids an individual from serving as president for more than two non consecutive terms, disbarring Ortega from filing for reelection on both of these counts. Daniel Ortega, not willing to give up power, had the Sandinista controlled Supreme Court overrule the current law as being in violation of human rights.
- The Israeli Supreme Court is known for making ideologically based decisions and issuing rulings in favor of the country's left camp and against its opponents. Examples of this include forcing the Israelis government to recognize same-sex "marriages" performed abroad.
The Seventh Circuit has criticized as "judicial activism" an interpretation of a contract beyond its clear meaning. "Thus, when a contract is unambiguous, 'we refuse to indulge in judicial activism' by 'construing the [contract] beyond its clear and obvious language ....' See Heller v. Equitable Life Assurance Soc'y, 833 F.2d 1253, 1257 (7th Cir. 1987)." Grun v. Pneumo Abex Corp., 163 F.3d 411, 420 (7th Cir. 1998).
- Judicial Restraint
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- Elena Kagan
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