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What is the significance of judicial activism in the United States?

judicial activism

Our editors will review what you’ve submitted and determine whether to revise the article.

• CORE - Judicial activism and overreach in India
• Digital Commons at UM Carey Law - The Role of Supreme Court: Judicial Activism or Self Restraint?

What is judicial activism?

Judicial activism is the exercise of the power of judicial review to set aside government acts. Generally, the phrase is used to identify undesirable exercises of that power, but there is little agreement on which instances are undesirable.

Judicial activism presents the danger of government by judiciary, which is contrary to the ideal of self-governance. It has produced some of the Supreme Court’s most reviled decisions, such as Lochner v. New York and Dred Scott v. Sandford , but also some of the most celebrated, such as Brown v. Board of Education .

What are examples of judicial activism in U.S. Supreme Court decisions?

Brown v. Board of Education and Loving v. Virginia are examples of activism that are now generally applauded. Lochner v. New York and Dred Scott v. Sandford are examples of activism that are now generally reviled.

Why is the term judicial activism pejorative when used in political rhetoric?

In the United States, judicial activism is usually used to indicate that the speaker thinks judges have gone beyond their proper roles in enforcing the Constitution and have decided a case based on their policy preferences. However, there is little agreement as to which decisions fit this description.

How does judicial activism interpret the U.S. Constitution?

In the way the term judicial activism is usually used, judicial activists abandon their responsibility to interpret the Constitution and instead decide cases to advance their preferred policies. However, there is little agreement about which decisions fit this description.

Is judicial activism the opposite of judicial restraint?

Judicial activism and judicial restraint are generally considered opposites. However, the lack of agreed-upon definitions or examples complicates the picture.

What is the difference between judicial activism and judicial restraint?

Judicial activism is the assertion (or, sometimes, the unjustified assertion) of the power of judicial review to set aside government acts. Judicial restraint is the refusal to strike down such acts, leaving the issue to ordinary politics.

judicial activism , an approach to the exercise of judicial review , or a description of a particular judicial decision, in which a judge is generally considered more willing to decide constitutional issues and to invalidate legislative or executive actions. Although debates over the proper role of the judiciary date to the founding of the American republic, the phrase judicial activism appears to have been coined by the American historian Arthur M. Schlesinger, Jr. , in a 1947 article in Fortune . Although the term is used quite frequently in describing a judicial decision or philosophy, its use can cause confusion, because it can bear several meanings, and even if speakers agree on which meaning is intended, they will frequently not agree on whether it correctly describes a given decision. ( Compare judicial restraint .)

The term activism is used in both political rhetoric and academic research. In academic usage activism usually means only the willingness of a judge to strike down the action of another branch of government or to overturn a judicial precedent, with no implied judgment as to whether the activist decision is correct or not. Activist judges enforce their own views of constitutional requirements rather than deferring to the views of other government officials or earlier courts. Defined in this way, activism is simply the antonym of restraint . It is not pejorative , and studies suggest that it does not have a consistent political valence. Both liberal and conservative judges may be activist in this sense, though conservative judges have been more likely to invalidate federal laws and liberals more likely to strike down those of the states.

In political rhetoric activism is used as a pejorative. To describe judges as activist in this sense is to argue that they decide cases on the basis of their own policy preferences rather than a faithful interpretation of the law , thus abandoning the impartial judicial role and “legislating from the bench.” Decisions may be labeled activist either for striking down legislative or executive action or for allowing it to stand. In the early 21st century one of the most-criticized Supreme Court decisions in the United States was in Kelo v. City of New London (2005), in which the court allowed the city to exercise its eminent domain power to transfer property from homeowners to a private developer. Because judges may be called activist for either striking down government action or permitting it (in Kelo they permitted it) and because activism in political usage is always considered wrongful, this sense of activism is not the antonym of restraint .

A judicial decision may also be called activist in a procedural sense if it resolves a legal issue unnecessary to the disposition of the case. A disputed example of alleged extreme procedural activism is the Supreme Court’s controversial decision in Citizens United v. Federal Election Commission (2010), which ultimately struck down provisions of federal election law that had limited corporate and union spending on political advertisements. Following oral arguments, the Court called for reargument of the case on the basis of new questions, because it foresaw that a correct ruling on the questions originally presented would have left the provisions in place and frustrated its conviction that “this corporation [Citizens United] has a constitutional right to speak on this subject.” Procedural activism is generally considered improper at the federal level in the United States and in countries that follow the U.S. system (e.g., Kenya and New Zealand) on the grounds that the function of courts is to resolve concrete disputes between adverse parties, not to issue legal pronouncements in the abstract. However, in states that follow other systems (e.g., Austria, France, Germany, South Korea , Spain, and some U.S. states), courts are permitted to decide issues in the absence of disputes or adverse parties.

Complaints about activism have arisen in most countries where courts exercise significant judicial review, particularly within common-law systems (e.g., at the federal levels in Australia, Canada, and India). Although in the U.S. context allegations of activism have been raised more recently by conservatives than liberals, such charges can be deployed by both sides, and the primary determinant is probably where the courts stand politically with respect to other government actors. In the first half of the 20th century, the Supreme Court tended to be more conservative than legislatures and was criticized by liberals for striking down progressive economic legislation (notably elements of Franklin D. Roosevelt ’s New Deal ) on the basis of the justices’ supposed free-market views. In the second half of the 20th century, especially under Chief Justice Earl Warren (1953–69), the Supreme Court was frequently more liberal than Congress and state legislatures and tended to be criticized by conservatives for striking down state and federal laws on the basis of the justices’ supposed liberal politics. In the early 21st century, the Supreme Court tacked back to the conservative side and was criticized for striking down laws such as campaign finance reform ( see Citizens United v. Federal Election Commission ).

Since neither conservatives nor liberals claim that judicial decisions should be based on politics rather than law, the debate over judicial activism does not take the form of arguments for and against. Instead, each side accuses the other of activism while denying that they themselves engage in it. However, the persistent difference of opinion among scholars and judges as to how the Constitution should be interpreted makes it difficult to demonstrate that any decision in a controversial case is the product of politics rather than law. In consequence, calling a decision activist serves primarily to indicate the speaker’s belief that those on the other side are not operating in good faith.

A Summary of Why We Need More Judicial Activism

Seth Robertson

Mar 24, 2014, 8:31 AM

By Suzanna Sherry, Herman O. Loewenstein Professor of Law

In this piece, Suzanna Sherry summarizes her essay, “Why We Need More Judicial Activism.” The full version of the essay will appear in a collection Sherry has co-edited with Giorgi Areshidze and Paul Carrese to be released in 2014 by SUNY Press. Sherry wrote this summary for the quarterly legal journal Green Bag , which devoted part of its summer 2013 edition to articles commenting on her essay. She characterizes the essay as “a rhetorical call to arms and an embrace of judicial activism.”

Too much of a good thing can be bad, and democracy is no exception. In the United States, the antidote to what the drafters of the Constitution called “the excess of democracy” is judicial review: unelected, life-tenured federal judges with power to invalidate the actions of the more democratic branches of government. Lately, judicial review has come under fire. Many on both sides of the political aisle accuse the Supreme Court of being overly activist and insufficiently deferential to the elected representatives of the people. Taking the Constitution away from the courts—and giving it back to the people—has become a rallying cry. But those who criticize the courts on this ground misunderstand the proper role of the judiciary. The courts should stand in the way of democratic majorities, in order to keep majority rule from degenerating into majority tyranny. In doing so, the courts are bound to err on one side or the other from time to time. It is much better for the health of our constitutional democracy if they err on the side of activism, striking down too many laws rather than too few.

In this forthcoming essay defending judicial activism, I begin by defining two slippery and often misused concepts, judicial review and judicial activism, and briefly survey the recent attacks on judicial activism. I then turn to supporting my claim that we need more judicial activism, resting my argument on three grounds. First, constitutional theory suggests a need for judicial oversight of the popular branches. Second, our own constitutional history confirms that the founding generation—the drafters of our Constitution—saw a need for a strong bulwark against majority tyranny. Finally, an examination of constitutional practice shows that too little activism produces worse consequences than does too much. If we cannot assure that the judges tread the perfect middle ground (and we cannot), it is better to have an overly aggressive judiciary than an overly restrained one.

Judicial review is not judicial supremacy. Judicial review allows courts an equal say with the other branches, not the supreme word. Courts are the final arbiter of the Constitution only to the extent that they hold a law unconstitutional, and even then only because they act last in time, not because their will is supreme. If judicial review is simply the implementation of courts’ equal participation in government, what, then, is judicial activism? To avoid becoming mired in political squabbles, we need a definition of judicial activism with no political valence. Judicial activism occurs any time the judiciary strikes down an action of the popular branches, whether state or federal, legislative or executive. Judicial review, in other words, produces one of two possible results: If the court invalidates the government action it is reviewing, then it is being activist; if it upholds the action, it is not.

Under that definition, and because the Court is not perfect, the question becomes whether we prefer a Supreme Court that strikes down too many laws or one that strikes down too few. Many contemporary constitutional scholars favor a deferential Court that invalidates too few. I suggest that we are better off with an activist Court that strikes down too many.

As many scholars have previously argued, judicial review is a safeguard against the tyranny of the majority, ensuring that our Constitution protects liberty as well as democracy. And, indeed, the founding generation expected judicial review to operate as just such a protection against democratic majorities. A Court that is too deferential cannot fulfill that role.

More significant, however, is the historical record of judicial review. Although it is difficult to find consensus about much of what the Supreme Court does, there are some cases that are universally condemned. Those cases offer a unique lens through which we can evaluate the relative merits of deference and activism: Are most of those cases—the Court’s greatest mistakes, as it were—overly activist or overly deferential? It turns out that virtually all of them are cases in which an overly deferential Court failed to invalidate a governmental action.1

When the Court fails to act—instead deferring to the elected branches—it abdicates its role as guardian of enduring principles against the temporary passions and prejudices of popular majorities. It is thus no surprise that with historical hindsight we sometimes come to regret those passions and prejudices and fault the Court for its passivity.

Ideally, of course, the Court should be like Baby Bear: It should get everything just right, engaging in activism when, and only when, We the People act in ways that we will later consider shameful or regrettable. But that perfection is impossible, and so we must choose between a Court that views its role narrowly and a Court that views its role broadly, between a more deferential Court and a more activist Court. Both kinds of Court will sometimes be controversial, and both will make mistakes. But history teaches us that the cases in which a deferential Court fails to invalidate governmental acts are worse. Only a Court inclined toward activism will vigilantly avoid such cases, and hence we need more judicial activism.

1 The essay lists the following as universally condemned cases (in chronological order): Bradwell v. State , 16 Wall. (83 U.S.) 130 (1873); Minor v. Happersett , 21 Wall. (88 U.S.) 162 (1874); Plessy v. Ferguson , 163 U.S. 537 (1896); Abrams v. U.S. , 250 U.S. 616 (1919); Schenck v. U.S. , 249 U.S. 47 (1919); Frohwerk v. U.S. , 249 U.S. 204 (1919); Debs v. U.S ., 249 U.S. 211 (1919); Buck v. Bell , 274 U.S. 200 (1927); Minersville School Dist. v. Gobitis , 310 U.S. 586 (1940); Hirabayashi v. U.S. , 320 U.S. 81 (1943); and Korematsu v. U.S. , 323 U.S. 214 (1944). Cases over which there is significant division, such as Roe v. Wade , 410 U.S. 113 (1973), and Lochner v. New York , 198 U.S. 45 (1905), are excluded. Dred Scott v. Sandford , 60 U.S. 393 (1856), and Bush v. Gore , 531 U.S. 98 (2000), are also excluded, on two grounds: They ultimately had little or no real-world effect; and they were products of a Court attempting to save the nation from constitutional crises, which is bound to increase the likelihood of an erroneous decision. Even if Dred Scott and Bush v. Gore are included, only two of 13 reviled cases are activist while 11 are deferential.

Reprinted from 16 Green Bag 2d 449 (2013), “Micro-Symposium: Sherry’s ‘Judicial Activism.’”

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Judicial Activism, Restraint & Overreach

• 27 May 2022
• 19 min read
• GS Paper - 2
• Judicial Review

What does it Mean?

• Judicial activism signifies the proactive role of the Judiciary in protecting the rights of citizens.
• The practice of Judicial Activism first originated and developed in the USA.
• In India, the Supreme Court and the High courts are vested with the power to examine the constitutionality of any law, and if such a law is found to be inconsistent with the provisions of the constitution, the court can declare the law as unconstitutional.
• It has to be noted that the subordinate courts do not have the power to review constitutionality of laws.
• The term judicial activism was coined by historian Arthur Schlesinger, Jr. in 1947.
• The foundation of Judicial Activism in India was laid down by Justice V.R Krishna Iyer, Justice P.N Bhagwati, Justice O.Chinnappa Reddy, and Justice D.A Desai.
• Judicial Activism has led to a controversy in regard to the supremacy between Parliament and Supreme Courts.
• It can disturb the delicate principle of separation of powers and checks and balances.
• Judicial Restraint is the antithesis of Judicial Activism .
• Judicial Restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power .
• In short, the courts should interpret the law and not intervene in policy-making.
• The original intent of those who wrote the constitution.
• Precedent – past decisions in earlier cases.
• Also, the court should leave policy making to others.
• Here, courts “restrain” themselves from setting new policies with their decisions.
• When Judicial Activism goes overboard, and becomes Judicial Adventurism, it is referred to as Judicial Overreach.
• In simpler terms, it is when the judiciary starts interfering with the proper functioning of the legislative or executive organs of the government.
• Judicial Overreach is undesirable in a democracy as it breaches the principle of separation of powers.
• In view of this criticism, the judiciary has argued that it has only stepped when the legislature or the executive has failed in its own functions.

Why is it Required?

• The failure of the executive and legislatures to act.
• Since there is a doubt that the legislature and executive have failed to deliver the desired results .
• It occurs because the entire system has been plagued by ineffectiveness and inactiveness .
• The violation of basic human rights has also led to judicial activism.
• Due to the misuse and abuse of some of the provisions of the Constitution, judicial activism has gained importance.
• There was rampant corruption in other organs of government.
• The executive became callous in its work and failed to deliver results required.
• Parliament became ignorant of its legislative duties.
• The principles of democracy were continuously degrading.
• Public Interest Litigations brought forward the urgency of public issues.
• For example, in G. Satyanarayana vs Eastern Power Distribution Company (2004), Justice Gajendragadkar ruled that a mandatory enquiry should be conducted if a worker is dismissed on the ground of misconduct, and be provided with an opportunity to defend himself. This judgement added regulations to labour law which was ignored by legislation.
• Similarly, Vishaka vs State of Rajasthan (1997) is an important case that reminds the need of Judicial activism. Here, the SC laid down guidelines that ought to be followed in all workplaces to ensure proper treatment of women. It further stated that these guidelines should be treated as a law until Parliament makes a legislation for enforcement of gender equality.
• Kesavananda Bharati case (1973) : The apex court of India declared that the executive had no right to intercede and tamper with the basic structure of the constitution.
• Sheela Barse v. State of Maharashtra (1983): A letter by Journalist, addressed to the Supreme Court addressing the custodial violence of women prisoners in Jail. The court treated that letter as a writ petition and took cognizance of that matter.
• I. C. Golaknath & Ors vs State Of Punjab & Anrs. (1967): The Supreme Court declared that Fundamental Rights enshrined in Part 3 are immune and cannot be amended by the legislative assembly.
• Hussainara Khatoon (I) v. State of Bihar (1979): The inhuman and barbaric conditions of the undertrial prisoners reflected through the articles published in the newspaper. Under article 21 of the Indian Constitution, the apex court accepted it and held that the right to speedy trial is a fundamental right.
• A.K. Gopalan v. State of Madras (1950): The Indian Supreme Court rejected the argument that to deprive a person of his life or liberty not only the procedure prescribed by law for doing so must be followed but also that such procedure must be fair, reasonable and just.
• Judicial restraint helps in preserving a balance among the three branches of government, judiciary, executive, and legislative.
• To uphold the law established by the government in the legislature.
• To show solemn respect for the separation of governmental problems .
• To allow the legislature and the executive to follow their duties by not reaching in their arena of work.
• To mark a respect for the democratic form of government by leaving the policy on policymakers.
• S.R. Bommai v Union of India (1994) is a famous example often stated to show restraint practiced by Judiciary. The judgement stated that in certain cases the judicial review is not possible as the matter is political. According to the court, the power of article 356 was a political question, thus refusing judicial review. The court stated that if norms of judiciary are applied on matters of politics, then it would be entering the political domain and the court shall avoid it.
• Similarly, in Almitra H. Patel Vs. Union of India (1998) the Supreme court refused to direct the Municipal Corporation on the issue of assigning responsibility for cleanliness of Delhi and stated that it can only assign authorities to carry out duty that is assigned as per law.
• The direct effect of legislative and executive negligence or inability is "judicial overreach".
• Weak and injudicious results, not only in the making of laws, but also in their application.
• The Indian judiciary has been criticized by many legal scholars, lawyers and judges themselves, for playing an exceedingly activist role and overreaching.
• There is a threat to the doctrine of separation of powers which undermines the spirit of the constitution. There is a lack of harmony between legislature and judiciary and an impression on the public of inaction by the legislature.
• In certain scenarios like that of environmental, ethical, political, expert knowledge is required which the judiciary might not possess. If it renders judgement while having no experience in these domains, then it not only undermines expert knowledge but also can prove harmful to the country.
• Judicial Overreach can lead to an expression of disregard by the judiciary in the elective representation. This can decrease the faith of the public in the institution of democracy.
• Hence, It is an obligation on the part of courts to remain under their jurisdiction and uphold the principle of separation of powers. The Supreme court has itself reminded other courts, in 2007, to practise Judicial restraint. It stated "Judges must know their limits and must try not to run the government. They must have modesty and humility, and not behave like emperors." Further, it said, "In the name of judicial activism, judges cannot cross their limits and try to take over states which belong to another organ of the state".
• A famous case of Judicial Overreach is censorship of the Film Jolly LLB II . The case was filed as a writ petition, and alleged that the film portrayed the legal profession as a joke, making it an act of contempt and provocation. The Bombay High Court appointed a three person committee to watch the movie and report on it. This was viewed as unnecessary, as the Board Of Film Certification already exists and is vested with the power to censor. On the basis of the report of the committee, four scenes were removed by the directors. It was seen as violative of Article 19(2), as it imposed restriction on freedom of speech and expression.
• On a PIL about road safety, the Supreme Court banned the Sale of Liquor, at retail shops, restaurants, bars within 500m of any national or state highway. There was no evidence presented before the court that demonstrated a relation of ban on liquor on highways with the number of deaths. This judgement also caused loss of revenue to state governments and loss of employment. The case was seen as an Overreach because the matter was administrative, requiring executive knowledge.

How is it Manifested?

• Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary.
• Judicial review is an example of check and balances in a modern governmental system.
• Judicial review is adopted in the Constitution of India from the Constitution of the United States of America .
• It gives power to the Supreme Court to examine the constitutionality of any law and if such a law is found to be inconsistent with the provisions of the Constitution, the Court can declare the law as unconstitutional.
• Public interest litigation means a suit filed in a court of law for the protection of public interest.
• Judicial activism in India acquired importance due to public interest litigation. It is not defined in any statute or act.
• In India, PIL initially was resorted to towards improving the lot of the disadvantaged sections of the society who due to poverty and ignorance were not in a position to seek justice from the courts.
• Justices P.N. Bhagwati and V.R. Krishna Ayer has played a key role in promoting this avenue of approaching the apex court of the country.
• Constitutional interpretation comprehends the methods or strategies available to people attempting to resolve disputes about the meaning or application of the Constitution.
• The possible sources for interpretation include the text of the Constitution, its "original history," including the general social and political context.
• The court refers to various international statutes in its judgements.
• This is done by the apex courts to ensure the citizens of their rights.
• International Law is referred to by Supreme Court's judgments in many cases. Example: Recently, SC reaffirmed the rights of disabled person to live with dignity in Jeeja Ghosh v. Union of India. The court underlined the Vienna Convention on the law of treaties, 1963 which requires India's internal legislation to comply with international commitments.
• Judges look to the original intent of the writers of the Constitution.
• Judges refer to the intent of the legislatures that wrote the law and the text of the law in making decisions.
• Any changes to the original Constitution language can only be made by constitutional amendments.
• Precedent means past decisions in earlier cases.
• Judicially-restrained judges respect stare-decisis, the principle of upholding established precedent handed down by past judges.
• Judicial Restraint is practised when the court leaves policy making to others.
• The courts generally refer to interpretations of the constitution by the Parliament or any other constitutional body.

How do they Differ?

• Judicial activism: interpretation of the constitution to advocate contemporary values and conditions.
• Judicial restraint: limiting the powers of the judges to strike down a law.
• Judicial restraint: the judges and the court encourage reviewing an existing law rather than modifying the existing law, whereas in judicial activism: it gives the power to overrule certain acts or judgments .
• Judicial activism judges should look beyond the original intent of the framers.
• In Judicial restraint, Judges should look to the original intent of the writers of the Constitution.
• In Judicial activism, the judges are required to use their power to correct any injustice especially when the other constitutional bodies are not acting.
• Judicial restraint is limiting the powers of the judges to strike down a law.
• Judicial activism has a great role in formulating social policies on issues like protection of the rights of an individual, civil rights, public morality, and political unfairness.
• In India, Judiciary has played an active role through its activism, especially through PIL. This has restored the rights of disadvantaged sections of the society.
• The Supreme Courts and the High Courts have worked in favour of progressive social policies and citizens hold a high regard for the institution of judiciary.
• It can be possible only when the executive and legislature are attentive and functional.
• At the same time, the Judiciary should be cautious of stepping into spheres of activity that does not belong to it.

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Judicial Activism [Meaning, Concept, Cases & Criticism] - Indian Polity Notes

Judicial activism is a concept that originated in the US in 1947. It has been seen in India since the Emergency days. Judiciary and judicial activism are important topics to be understood by the aspirants for IAS Exam . The article will introduce you to judicial activism, its methods, significance and pros and cons. 

Judicial Activism – Know What It Means

The judiciary plays an important role in upholding and promoting the rights of citizens in a country. The active role of the judiciary in upholding the rights of citizens and preserving the constitutional and legal system of the country is known as judicial activism. This entails, sometimes overstepping into the territories of the executive. Candidates should know the judicial overreach is an aggravated version of judicial activism. 

Judicial activism is seen as a success in liberalizing access to justice and giving relief to disadvantaged groups, because of the efforts of justices V R Krishna Ayer and P N Bhagwati.

The Black’s Law Dictionary defines judicial activism as “judicial philosophy which motivates judges to depart from the traditional precedents in favour of progressive and new social policies.”

The concept of Public Interest Litigation (PIL) is always talked of when judicial activism is discussed.

Judicial Activism – Indian Polity:- Download PDF Here

Judicial Activism Methods

There are various methods of judicial activism that are followed in India. They are:

• Judicial review (power of the judiciary to interpret the constitution and to declare any such law or order of the legislature and executive void, if it finds them in conflict with the Constitution)
• PIL (The person filing the petition must not have any personal interest in the litigation, this petition is accepted by the court only if there is an interest of large public involved; the aggrieved party does not file the petition). 
• Constitutional interpretation
• Access of international statute for ensuring constitutional rights
• Supervisory power of the higher courts on the lower courts

Significance of Judicial Activism

• It is an effective tool for upholding citizens’ rights and implementing constitutional principles when the executive and legislature fails to do so.
• Citizens have the judiciary as the last hope for protecting their rights when all other doors are closed. The Indian judiciary has been considered as the guardian and protector of the Indian Constitution. 
• There are provisions in the constitution itself for the judiciary to adopt a proactive role. Article 13 read with Articles 32 and 226 of the Constitution provides the power of judicial review to the higher judiciary to declare any executive, legislative or administrative action void if it is in contravention with the Constitution.
• According to experts, the shift from locus standi to public interest litigation made the judicial process more participatory and democratic.
• Judicial activism counters the opinion that the judiciary is a mere spectator.

Judicial Activism Examples

It all started when the Allahabad High Court rejected the candidature of Indira Gandhi in 1973. 

• In 1979, the Supreme Court of India ruled that undertrials in Bihar had already served time for more period than they would have, had they been convicted.
• Golaknath case: The questions, in this case, were whether the amendment is a law; and whether Fundamental Rights can be amended or not. SC contented that Fundamental Rights are not amenable to the Parliamentary restriction as stated in Article 13 and that to amend the Fundamental rights a new Constituent Assembly would be required. Also stated that Article 368 gives the procedure to amend the Constitution but does not confer on Parliament the power to amend the Constitution.
• Kesavananda Bharati case: This judgement defined the basic structure of the Constitution. The SC held that although no part of the Constitution, including Fundamental Rights, was beyond the Parliament’s amending power, the “basic structure of the Constitution could not be abrogated even by a constitutional amendment.” This is the basis in Indian law in which the judiciary can strike down an amendment passed by Parliament that is in conflict with the basic structure of the Constitution.
• In the 2G scam, the SC cancelled 122 telecom licenses and spectrum allocated to 8 telecom companies on the grounds that the process of allocation was flawed.
• The Supreme Court rolled out a blanket ban on firecrackers in the Delhi – NCR area with certain exceptions in 2018.
• The SC invoked terror laws against alleged money launderer Hasan Ali Khan.

Aspirants should read about landmark cases related to the basic structure of the constitution , in the linked article.

Pros & Cons Of Judicial Activism

Judicial Activism in simple words means when judges interrupt their own personal feelings into a conviction or sentence, instead of upholding the existing laws. For some reason, every judicial case has a base of activism within it, so it is imperative to weigh the pros and cons to determine the aptness of the course of action being carried out. 

Pros associated with Judicial Activism India

• Judicial Activism sets out a system of balances and controls to the other branches of the government. It accentuates required innovation by way of a solution.
• In cases where the law fails to establish a balance, Judicial Activism allows judges to use their personal judgment.
• It places trust in judges and provides insights into the issues. The oath of bringing justice to the country by the judges does not change with judicial activism. It only allows judges to do what they see fit within rationalised limits. Thus, showing the instilled trust placed in the justice system and its judgments.
• Judicial Activism helps the judiciary to keep a check on the misuse of power by the state government when it interferes and harms the residents. 
• In the issue of majority, it helps address problems hastily where the legislature gets stuck in taking decisions.

Cons Associated with Judicial Activism 

• Firstly, when it surpasses its power to stop and misuse or abuse of power by the government. In a way, it limits the functioning of the government. 
• It clearly violates the limit of power set to be exercised by the constitution when it overrides any existing law. 
• The judicial opinions of the judges once taken for any case becomes the standard for ruling other cases.
• Judicial activism can harm the public at large as the judgment may be influenced by personal or selfish motives. 
• Repeated interventions of courts can diminish the faith of the people in the integrity, quality, and efficiency of the government.

Judicial Activism Criticism

Judicial activism has also faced criticism several times. In the name of judicial activism, the judiciary often mixes personal bias and opinions with the law. Another criticism is that the theory of separation of powers between the three arms of the State goes for a toss with judicial activism. Many times, the judiciary, in the name of activism, interferes in an administrative domain, and ventures into judicial adventurism/overreach. In many cases, no fundamental rights of any group are involved. In this context, judicial restraint is talked about. 

Also read: PIL Under Scrutiny: RSTV – The Big Picture

Judicial Activism VS Judicial Restraint

As mentioned earlier, Judicial Activism is the role played by the judiciary to uphold the legal and constitutional rights of the citizens. Judiciary exercises its own power to implement or strike down the laws and rules that infringes the right of the citizens or is for the good of the society at large, whatever the case may be. 

While, on the other hand, Judicial Restraint is the second face of the coin. It is the polar opposite of activism which puts obligations on it to follow constitutional laws while implementing its duties. It encourages the judiciary to respect the laws or rules set out in the constitution. 

Judiciary has gained power with judicial activism as the judges can take up issue suo-motu wherever they think that constitutional laws are being violated. However, with judicial restraint, the same judiciary has to abide by the executive who is given the sole power to legislate for the public. 

Why is Judicial Activism needed?

• When the legislature fails to make the necessary legislation to suit the changing times and governmental agencies fail miserably to perform their administrative functions sincerely, it leads to an erosion of the confidence of the citizens in the constitutional values and democracy. In such a scenario, the judiciary steps into the areas usually earmarked for the legislature and executive and the result is the judicial legislation and a government by judiciary.
• In case the fundamental rights of the people are trampled by the government or any other third party, the judges may take upon themselves the task of aiding the ameliorating conditions of the citizens.
• The greatest asset and the strongest weapon in the armory of the judiciary is the confidence it commands and the faith it inspires in the minds of the people in its capacity to do even-handed justice and keep the scales in balance in any dispute.

Way forward in Judicial Activism

Judicial activism is a product fabricated solely by the judiciaries and not backed by the Constitution. When the judiciary surpasses the line of the powers set for it in the name of judicial activism, it could be rightly said that the judiciary then begins to invalidate the concept of separation of powers set out in the Constitution.

If judges can freely decide and make laws of their choices, it would not only go against the principle of separation of powers but will result in chaos and uncertainty in the law as every judge will start writing his own laws according to his fads and quirks.

Judicial exercise has to be respected to maintain a clear balance.

Making laws is the function and duty of the legislature, to fill the gap of laws and to implement them in a proper manner. So that the only work remaining for the judiciary is interpretations. Only a fine equilibrium between these government bodies can sustain the constitutional values.

Kickstart your UPSC 2024 Preparation with these notes and keep on revising for UPSC Prelims. 

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UPSC Questions related to Judicial Activism

What is an example of judicial activism.

An example of judicial activism is the famous Kesavananda Bharati case.

What is the difference between judicial activism and judicial restraint?

Both are opposing concepts. While judicial activism talks about courts taking on a proactive role in ensuring and protecting citizens’ rights , judicial restraint encourages the judiciary to limit the exercise of their own power.

Is judicial activism good?

Judicial activism can be good if the intention of the court is to protect and preserve the rights of citizens, and not merely criticise the government.

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Essay on Judicial Activism

Introduction.

According to the interpretation of the law, the judiciary is one of the critical branches of government that assists in upholding the Constitution and emphasizes that the rule of law is adhered to. Nonetheless, the role of that judiciary has been under investigation, with some suggesting that judges have become too powerful. As a result, they participate in judicial Activism through legislating from the bench. However, it is worth noting that judicial Activism is a controversial issue. It is commonly related to liberal judges who are viewed to be using their authority to develop progressive policy goals.

Nevertheless, over recent years, conservative justices and judges have been indicted for taking part in Activism, particularly with respect to reversing the precedents and challenging the power of elected institutions. Moreover, the idea of Activism has been challenged, with some suggesting that it is typically a means of denouncing court decisions that one fails to agree with instead of a valuable difference between various perspectives of the law. Thus, the idea of Activism can still help recognize decisions that may be going beyond the bounds of traditional judicial practice. This essay seeks to traverse what comprises a proper role for the judiciary, what it means for a court to be activist or reveal judicial restraint, and how both liberals and conservatives participate in judicial Activism.

The role of the judiciary

The Constitution of the United States offers the judiciary authority to interpret the law and ensure that it is applied consistently and fairly. The judiciary is also accountable for making sure that the actions of the branches, legislative and executive, conform with the Constitution and the law. This is commonly regarded as the perspective of separation of power (Stein, 2019). However, the judiciary’s role is also controversial in the united states. While the debate lies on the role of judges in interpreting and applying the law, some people argue that judges should actively participate in modeling the law and developing social progress. At the same time, on the hand, others claim that judges should limit themselves in the process of interpretation of the law as it is documented and refrain from using authority to develop their individual policy goals.

Moreover, the judiciary’s role is to review the constitutionality of laws. According to (Prendergast, 2019), it has the authority to review the legality of the laws passed by the legislative branch. The judiciary’s role is to strike down the law violating the Constitution. This means that judges should not be biased or impacted by personal influences or political considerations. The Constitution should direct them. An appropriate role of the judiciary also directs that judges should limit themselves from participating in legislating from the bench or even developing policy decisions. This means that as judges interpret the law and apply it to particular cases, they should restrain from using their power to establish new laws or inflict their individual beliefs on the public (Dembi, 2022).

What it means for a court to be activist

A court being described as an activist means it normally engages in the decision-making process that exceeds the typical interpretation of the law. Rather, it decides based on social and political considerations (Cross & Lindquist, 2006). This means that a court is described as an activist if it uses its power to create new laws or develop policy decisions instead of just interpreting the existing laws. This often entails the court taking a more offensive stance in interpreting the Constitution in such a way that develops a certain social or political theme. For instance, a court can be explained as an activist if it brings down a law that has broadly been acceptable by the Constitution over the years or even if it is directed by political considerations instead of legal analysis. This can certainly be controversial when the decision withdraws an existing legal precedent.

However, there exists criticism of activist courts, with critics claiming that they subvert the democratic process and the elected leaders’ power. They suggest that courts restrain themselves from interpreting and applying the law as it is documented and not using their power to inflict individual beliefs or even develop political agendas (Emerson, 2022). Moreover, the proponents of activist law suggest that they are crucial to developing social progress and ensuring that the rights of vulnerable groups or the minority are safeguarded. They argue that courts are accountable for interpreting the law in a way it conforms with evolving social values and changing ideas of justice.

Judicial Activism is commonly linked to liberal judges, who are viewed as more likely to use their authority to develop progressive policy goals. Nonetheless, over recent years, conservative judges have also been convicted of taking part in judicial Activism since they have been more prevalent in overturning previous cases and challenging the power of elected institutions of government (Wynn, 2021).

Judicial restraint

Judicial restraint refers to the notion that judges should limit themselves to the interpretation and application of the law to the facts of the case at hand (Balkin, 2019). This means that they should refrain from using their authority to develop their policy goals or replace their ruling with that of the legislature. This perspective is often related to conservative judges and justices. Nonetheless, even the judges who recommend judicial restraint identify that there are extents to this perspective.

Role of the Concept of Activism

Considering that both conservatives and liberals participate in judicial Activism, some have challenged the neediness of the idea of Activism. The concept typically condemns the court’s decisions that one fails to agree with instead of a meaningful differentiation between various law perspectives. In contrast, others argue that Activism is still crucial as it assists us in recognizing decisions that may exceed the bounds of traditional judicial practice.

The role played by the judicial in the United States is interpreting the law and making sure that it is applied unbiasedly. The question of what comprises an appropriate role of the judiciary has been debated over the years. Additionally, judicial Activism and judicial restraint are frequently used to explain various perspectives of the law. Judicial Activism is linked with liberal judges and justices, while judicial restraint is related to conservative judges. Over the years, both conservatives and liberals have been suspected of taking part in judicial Activism. The fact is that an appropriate role of the judiciary entails striking a neutrality between interpreting the law and honoring the difference of powers between the three main branches of government. However, it is crucial to note that the judiciary is obligated to uphold individual rights and ensure that the Constitution is honored.

Balkin, J. M. (2019). Why Liberals and Conservatives Flipped on Judicial Restraint: Judicial Review in the Cycles of Constitutional Time.  Texas Law Review , pp.  98 , 215. https://heinonline.org/HOL/LandingPage?handle=hein.journals/tlr98&div=12&id=&page=

Cross, F. B., & Lindquist, S. A. (2006). The Scientific Study of Judicial Activism.  Minnesota Law Review ,  91 , 1752. https://heinonline.org/HOL/LandingPage?handle=hein.journals/mnlr91&div=51&id=&page=

Dembi, D. (2022, May 8).  Understanding Separation of Powers through Judicial Behavior . Papers.ssrn.com. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4103821

Emerson, B. (2022). Liberty and Democracy through the Administrative State: A Critique of the Roberts Court’s Political Theory.  Hastings Law Journal ,  73 , 371. https://heinonline.org/HOL/LandingPage?handle=hein.journals/hastlj73&div=12&id=&page=

Prendergast, D. (2019). The judicial role in protecting democracy from populism.  German Law Journal ,  20 (02), 245–262. https://doi.org/10.1017/glj.2019.15

Stein, R. A. (2019). What Exactly Is the Rule of Law?  Houston Law Review ,  57 , 185. https://heinonline.org/HOL/LandingPage?handle=hein.journals/hulr57&div=7&id=&page=

Wynn, J. A. (2021). When Judges and Justices Throw out Tools: Judicial Activism in Rucho v. Common Cause.  New York University Law Review ,  96 , 607. https://heinonline.org/HOL/LandingPage?handle=hein.journals/nylr96&div=17&id=&page=

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What Is Judicial Activism?

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Judicial activism describes how a judge approaches or is perceived to approach exercising judicial review . The term refers to scenarios in which a judge issues a ruling that overlooks legal precedents or past constitutional interpretations in favor of protecting individual rights and serving a broader social or political agenda.

Judicial Activism

• The term judicial activism was coined by historian Arthur Schlesinger, Jr. in 1947.
• Judicial activism is a ruling issued by a judge that overlooks legal precedents or past constitutional interpretations in favor of protecting individual rights or serving a broader political agenda.
• The term may be used to describe a judge's actual or perceived approach to judicial review.

Coined by historian Arthur Schlesinger, Jr. in 1947, the term judicial activism carries multiple definitions. Some argue that a judge is a judicial activist when they simply overturn a prior decision. Others counter that the primary function of the court is to re-interpret elements of the Constitution and assess the constitutionality of laws and that such actions should, therefore, not be called judicial activism at all because they are expected.

As a result of these varying stances, use of the term judicial activism relies heavily on how someone interprets the Constitution as well as their opinion on the intended role of the Supreme Court in the separation of powers.

Origins of the Term

In a 1947 Fortune magazine article, Schlesinger organized sitting Supreme Court justices into two categories: proponents of judicial activism and proponents of judicial restraint. The judicial activists on the bench believed that politics play a role in every legal decision. In the voice of a judicial activist, Schlesinger wrote: "A wise judge knows that political choice is inevitable; he makes no false pretense of objectivity and consciously exercises the judicial power with an eye to social results."

According to Schlesinger, a judicial activist views the law as malleable and believes that law is meant to do the greatest possible social good. Schlesinger famously did not take an opinion on whether judicial activism is positive or negative.

In the years following Schlesinger’s article, the term judicial activist often had negative implications. Both sides of the political aisle used it to express outrage at rulings that they did not find in favor of their political aspirations. Judges could be accused of judicial activism for even slight deviations from the accepted legal norm.

Forms of Judicial Activism

Keenan D. Kmiec chronicled the evolution of the term in a 2004 issue of the California Law Review . Kmiec explained that charges of judicial activism can be levied against a judge for a variety of reasons. A judge might have ignored precedent, struck down a law introduced by Congress , departed from the model another judge used for a finding in a similar case, or written a judgment with ulterior motives to achieve a certain social goal.

The fact that judicial activism does not have a single definition makes it difficult to point to certain cases that demonstrate a judge ruling as a judicial activist. In addition, the number of cases displaying acts of judicial re-interpretation increases and decreases based on how re-interpretation is defined. However, there are a few cases, and a few benches, that are generally agreed upon as examples of judicial activism.

The Warren Court

The Warren Court was the first Supreme Court bench to be called a judicial activist for its decisions. While Chief Justice Earl Warren presided over the court between 1953 and 1969, the court handed down some of the most famous legal decisions in U.S. history, including  Brown v. Board of Education , Gideon v. Wainwright , Engel v. Vitale , and Miranda v. Arizona . The Warren Court penned decisions that championed liberal policies that would go on to have a large impact on the country in the 1950s, 1960s, and on.

Examples of Judicial Activism

Brown v. Board of Education (1954) is one of the most popular examples of judicial activism to come out of the Warren Court. Warren delivered the majority opinion, which found that segregated schools violated the Equal Protection Clause of the 14th Amendment. The ruling effectively struck down segregation, finding that separating students by race created inherently unequal learning environments. This is an example of judicial activism because the ruling overturned Plessy v. Ferguson , in which the court had reasoned that facilities could be segregated as long as they were equal.

But a court does not have to overturn a case for it to be seen as activist. For example, when a court strikes down a law, exercising the powers given to the court system through the separation of powers, the decision may be viewed as activist. In Lochner v. New York (1905), Joseph Lochner, the owner of a bakeshop, sued the state of New York for finding him in violation of the Bakeshop Act, a state law. The Act limited bakers to working less than 60 hours per week and the state fined Lochner twice for allowing one of his workers to spend over 60 hours in the shop. The Supreme Court ruled that the Bakeshop Act violated the Due Process Clause of the 14th Amendment because it infringed on an individual's freedom of contract. By invalidating a New York law and interfering with the legislature, the court favored an activist approach.

Differentiating Between Judicial Activist and Liberal

Activist and liberal are not synonymous. In the 2000 presidential election , Democratic Party candidate Al Gore contested the results of more than 9,000 ballots in Florida that did not mark either Gore or Republican candidate George W. Bush. Florida's Supreme Court issued a recount, but Dick Cheney, Bush's running mate, called for the Supreme Court to review the recount.

In Bush v. Gore , the Supreme Court ruled that Florida's recount was unconstitutional under the Equal Protection Clause of the 14th Amendment because the state failed to institute a uniform procedure for the recount and handled each ballot differently. The court also ruled that under Article III of the Constitution, Florida did not have time to develop a procedure for a separate, proper recount. The court intervened in a state decision that affected the nation, taking an activist approach, even though it meant a conservative candidate—Bush—won the 2000 presidential election, proving that judicial activism is neither conservative nor liberal.

Judicial Activism vs. Judicial Restraint

Judicial restraint is considered the antonym of judicial activism. Judges who practice judicial restraint hand down rulings that strictly adhere to the “original intent” of the Constitution. Their decisions also draw from stare decisis , which means they rule based on precedents set by previous courts.

When a judge favoring judicial restraint approaches the question of whether a law is constitutional, they tend to side with the government unless the unconstitutionality of the law is extremely clear. Examples of cases where the Supreme Court favored judicial restraint include Plessy v. Ferguson and Korematsu v. United States . In Korematsu , the court upheld race-based discrimination, refusing to interfere with legislative decisions unless they explicitly violated the Constitution.

Procedurally, judges practice the principle of restraint by choosing not to take on cases that require constitutional review unless absolutely necessary. Judicial restraint urges judges to consider only cases where parties can prove that a legal judgment is the only means of solving a dispute.

Restraint is not exclusive to politically conservative judges. Restraint was favored by the liberals during the New Deal era because they didn’t want progressive legislation overturned.

Procedural Activism

Related to judicial activism, procedural activism refers to a scenario in which a judge's ruling addresses a legal question beyond the scope of the legal matters at hand. One of the most famous examples of procedural activism is Scott v. Sandford . The plaintiff, Dred Scott, was an enslaved man in Missouri who sued his enslaver for freedom. Scott based his claim to freedom on the fact that he had spent 10 years in an anti-slavery state, Illinois. Justice Roger Taney delivered the opinion on behalf of the court that the court did not have jurisdiction over Scott’s case under Article III of the U.S. Constitution. Scott’s status as an enslaved man meant that he was not formally a citizen of the United States and could not sue in federal court.

Despite ruling that the court did not have jurisdiction, Taney continued to rule on other matters within the Dred Scott case. The majority opinion found the Missouri Compromise itself to be unconstitutional and ruled that Congress could not free enslaved people in the Northern states. Dred Scott stands as a prominent example of procedural activism because Taney answered the principal question and then ruled on separate, tangential matters to further his own agenda of keeping slavery as an institution in the United States.

• Bush v. Gore , 531 U.S. 98 (2000).
• Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).
• " Introduction to Judicial Activism: Opposing Viewpoints ."  Judicial Activism , edited by Noah Berlatsky, Greenhaven Press, 2012. Opposing Viewpoints.  Opposing Viewpoints in Context.
• " Judicial Activism ."  Opposing Viewpoints Online Collection , Gale, 2015.  Opposing Viewpoints in Context.
• Kmiec, Keenan D. “The Origin and Current Meanings of 'Judicial Activism.'”  California Law Review , vol. 92, no. 5, 2004, pp. 1441–1478., doi:10.2307/3481421
• Lochner v. New York, 198 U.S. 45 (1905).
• Roosevelt, Kermit. “Judicial Activism.”  Encyclopædia Britannica , Encyclopædia Britannica, Inc., 1 Oct. 2013.
• Roosevelt, Kermit. “Judicial Restraint.”  Encyclopædia Britannica , Encyclopædia Britannica, Inc., 30 Apr. 2010.
• Schlesinger, Arthur M. "The Supreme Court: 1947." Fortune , vol. 35, no. 1, Jan. 1947.
• Scott v. Sandford, 60 U.S. 393 (1856).
• Roosevelt, Kermit.  The Myth of Judicial Activism: Making Sense of Supreme Court Decisions . Yale University Press, 2008.
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Selective Judicial Activism in the Roberts Court

Alan B. Morrison Lerner Family Associate Dean for Public Interest and Public Service Law; Professorial Lecturer in Law, George Washington University Law School

Alan B. Morrison [1]

The opinion in Dobbs v. Jackson Women’s Health Organization [2] does not use the phrase “judicial activism” to describe how the majority in Roe v. Wade [3] found a right to an abortion in the Constitution. However, in three places in the opinion, Justice Samuel A. Alito quoted Justice Byron R. White’s dissent in Roe , in which he accused the majority of exercising “raw judicial power” in striking down Texas’s prohibition on abortion, which is another way of accusing the majority of engaging in judicial activism. [4] Aside from those who would define a judicial activist as a judge whose decision they do not agree with, one could hardly dispute the assertion that, at the very least, the majority in Roe aggressively interpreted the Constitution to reach its conclusions. According to Justice Alito, the Roe majority egregiously erred, and “[i]t is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” [5]

Justice Alito’s opinion, one would believe that he and others on the Roberts Court believe strongly in having controversial policy judgments always be made by our elected representatives, instead of by judicial activists. That approach to judging is a defensible one, but, as this essay argues, the current majority of the Roberts Court has a very selective approach to judicial activism. Time and again, in a wide variety of subject areas, when the constitutional claim at issue aligns with the policy position of the political party of the President that nominated these Justices (i.e., the Republican party), they are every bit as activist as the Roe majority.

Justice Alito’s opinion has a built-in response. On page 1, he observes that “the Constitution makes no mention of abortion,” which he repeats with only slight variance on seven occasions. [6] His response would be that, in the other cases, in which the majority of the Roberts Court supported a limit on legislative actions, there was a word or a phrase that is “mentioned” in the Constitution, such as the “free exercise” of religion, the “freedom of speech,” the right “to keep and bear arms,” the prohibition on the “tak[ing]” of “private property,” or that, under Article I, Section 3, the President “shall take Care that the Laws be faithfully executed.” But, of course, the majority in Roe did point to the word “liberty,” which is in the Constitution; [7] it is just that Justice Alito did not read that word in the same (expansive) way that Justice Harry A. Blackmun did in Roe . According to Justice Alito, the flaw in Roe was that it examined the words in the Constitution at a “high level of generality,” which he concluded led to a vast expanse of rights protected by the Constitution. [8] In other words, the Dobbs majority rejected a constitutional right to abortion because the text of the Constitution did not support such an approach.

This essay argues that the majority of the Roberts Court has often latched on to a word or phrase “mentioned” in the Constitution, examined its meaning at a “high level of generality,” and reached a result that took the decision away from “the people’s elected representatives.” It has, however, done so only when the outcome supports the positions of the party of the Republican President who appointed those Justices. Of course, this selective judicial activism does not explain every constitutional decision, and this essay does not discuss every such ruling since John Roberts became Chief Justice in 2003. But the pattern is too consistent to admit of any conclusion other than that the Justices abhor judicial activism, except when it serves to produce the political goals that they support. Judicial activism may or may not be a proper way to understand the Constitution, but it should at least be applied evenly across all cases.

This examination of the cases proceeds in the following order. First, I review Washington v. Glucksberg , [9] the case that is at the heart of the Dobbs opinion and show that it need not be read to provide the door-closing impact on a due process argument that the majority embraces. Next, I turn to a sampling of the election-related cases and show that the Roberts Court has failed to follow the premises of Dobbs and has been an activist court when it suits the goals of the Republican Party, but not otherwise. Then I turn to the success of the Roberts Court in undermining the power of labor unions, by broad readings of the First and Fifth Amendments. In the final section, I point to other expansive readings of the Constitution by the Roberts Court that also coincide with the political goals of the party whose President appointed them.

One further word about the analysis of the cases below. In each of the cases, the majority opinion was lengthy, and it covered many arguments. There were always dissents and there were often concurrences. This essay does not attempt to discuss each decision in full. Instead, it will focus on what are the two central ingredients of Dobbs : (1) its conclusion that the text of the Constitution does not protect the right to an abortion or other rights in other cases; and (2) where the right at issue is not mentioned in the Constitution, the Court should defer to the views of the elected representatives. The question that is at the center of this essay is how closely the Roberts Court adhered to those principles in these other cases.

I. Washington v. Glucksberg  – The Basis of Dobbs

The backbone of Dobbs is the portion of the majority opinion in Washington v. Glucksberg , stating that in order for a right to be protected under the Due Process Clause, it must be “deeply rooted in this Nation's history and tradition” and “implicit in the concept of ordered liberty.” [10] The opinion was written by Chief Justice William H. Rehnquist, who was one of the two dissenters in Roe . The case involved a facial challenge to an assisted-suicide ban under which a “person is guilty of promoting a suicide attempt when he knowingly causes or aids another person to attempt suicide.” [11] However, another state law clarified that the “withholding or withdrawal of life-sustaining treatment” at a patient’s direction “shall not, for any purpose, constitute a suicide.” [12] In rejecting the claim of the three plaintiff-physicians, the Court identified a number of significant interests that supported the law, [13] while also recognizing the interests of individuals nearing death who were in serious pain and no longer wished to live.

Although the judgment in Glucksberg was unanimous, four Justices concurred only in the result. In addition, Justice Sandra Day O’Connor joined the majority opinion, but wrote a short concurrence that Dobbs does not mention, and that makes three important points. The first, as a reason for the Court not to step in, points out the difficulty in drawing lines as to what assistance is and is not appropriate: As the Court recognizes, States are presently undertaking extensive and serious evaluation of physician-assisted suicide and other related issues. In such circumstances, “the . . . challenging task of crafting appropriate procedures for safeguarding . . . liberty interests is entrusted to the ‘laboratory’ of the States . . . in the first instance.” [14] The second is that the states are already doing much to alleviate the end-of-life suffering of many patients:

There is no dispute that dying patients in Washington and New York can obtain palliative care, even when doing so would hasten their deaths. The difficulty in defining terminal illness and the risk that a dying patient’s request for assistance in ending his or her life might not be truly voluntary justifies the prohibitions on assisted suicide we uphold here. [15]

Third, Justice O’Connor pointed to a political dynamic regarding assisted suicide that is surely very different from the one that pertains to the debate over abortion:

Every one of us at some point may be affected by our own or a family member’s terminal illness. There is no reason to think the democratic process will not strike the proper balance between the interests of terminally ill, mentally competent individuals who would seek to end their suffering and the State’s interests in protecting those who might seek to end life mistakenly or under pressure. [16]

Justice Alito read Glucksberg as a door-closing ruling, so that, unless a right fell within the confines of being “deeply rooted” or “implicit in the concept of ordered liberty,” it would receive almost no constitutional protection. But as Justice O’Connor’s concurrence showed, it need not have been read that way. Moreover, because there was no sharp difference between the major political parties over the issue of assisted suicide, and because every Justice supported the result in Glucksberg , the political divide that is an inescapable element of the abortion debate did not affect the outcome there. But as I show, the political divide over many controversial issues discussed in this essay goes a long way toward explaining the aggressive assertion of other rights by the majority of the Roberts Court, in contrast to the approach they took to abortion in Dobbs .

II. The Election Cases

In Shelby County v. Holder, [17] the plaintiff challenged the provisions of the Voting Rights Act that required certain states and some of the subdivisions in other states to obtain pre-clearance by either the Department of Justice or a three-judge district court in the District of Columbia for any changes in their laws affecting voting, in order to protect against further loss of the rights of racial minorities. [18] The Act was first passed in 1965, and a challenge to it was rejected by the Supreme Court then, as were the lawsuits over four subsequent re-enactments, which included certain additions to the coverage of the pre-clearance requirement. [19] In Shelby County , the challenge was to the 2006 amendments, which had passed the House by a vote of 390 to 33 and the Senate by a vote of 98 to 0. [20]

The majority conceded that the Act was necessary when it was passed, but it concluded that there had been a vast increase in the ability of minorities to vote in the covered jurisdictions since 1965. [21] As a result, it decided that the law was no longer needed, and therefore its prior intrusions on the rights of state legislatures to pass their own voting laws could no longer be tolerated. In particular, the majority found fault with the formula in Section 4 that determined which states and localities were subject to pre-clearance, finding them to be out of date and not justified by that formula. [22]

To justify his conclusion that Section 4 was unconstitutional, Chief Justice Roberts cited two principles of law, neither of which appears in the text of the Constitution: “basic principles of federalism,” and the “principle that all States enjoy equal sovereignty.” [23] As for federalism, that is hardly a barrier because the Voting Rights Act relied on the Fifteenth Amendment, which was enacted specifically to prevent states from passing racially discriminatory voting laws and which gives Congress the authority to enforce it “by appropriate legislation.” Whatever weight federalism may have in other contexts, it surely can have very little here. As for the principle of “equal sovereignty,” those words do not appear in the Constitution, and whatever force that principle may have, it was not sufficient for pre-Roberts Court Justices to overturn the Act when it was previously before the Court. To the extent that there needed to be textual support for rejecting Section 4, it was plainly lacking.

As for the other principal justification for Dobbs —deference to the legislature— Shelby County was just the opposite. Although the majority went through the evidence adduced in the extension hearings before Congress, both leading up to the 2006 amendments and those before them, it concluded that Congress was, in effect, mistaken when it retained Section 4 because that provision was no longer necessary. Justice Ruth Bader Ginsburg in her dissent, joined by Justices Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan, explained in great detail why the majority was wrong and why the pre-clearance sections were still essential to prevent back- sliding and to counteract new forms of discrimination. [24] But for these purposes, the point is not who was right about necessity, but whether the majority did what Justice Alito said the Supreme Court should do and defer to the judgment of the elected legislature. Plainly not. Moreover, it is hardly a coincidence that the states that were covered before Shelby County are all Republican strongholds that are now in a position to solidify their control of the state legislatures and redistricting for the House of Representatives. [25]

In 1976, in Buckley v. Valeo , [26] the Court held that the First Amendment’s Free Speech Clause protected certain aspects of raising and spending money on campaigns for elected office, on the theory that money is essential to campaigning for elected office today. The decision nonetheless upheld limits on what individuals could contribute directly to candidates, but struck down limits on what candidates could spend, and freed up individuals to make independent expenditures in any amount that they chose, as long as they did not coordinate with the candidate.

Money is not mentioned in the First Amendment, but it is hard to quarrel with the Court’s conclusion regarding the vital role that it plays in the ability of candidates to get their messages out, which is surely one of the highest forms of political speech. On the deference side, the Court was rightly concerned that, if it deferred to the wishes of Congress, and severely limited the amount a challenger could spend, and it would thereby “handicap a candidate who lacked substantial name recognition or exposure of his views before the start of the campaign,” i.e., help incumbents who wrote the law setting the ceiling. [27]

Opponents of the parts of the law that the Court had sustained in Buckley sought to explore potential loopholes, and Congress responded with efforts to close them. One limit on campaign spending that had existed since 1907 was a ban on corporations making direct contributions to candidates or political parties, which had been expanded in 1947 to include independent expenditures. Most, but not all, states had similar rules regarding corporate spending when Citizens United v. Federal Election Commission , [28] came before the Roberts Court. Writing separately to concur in part and dissent in part, Justice John Paul Stevens pointed out that there were many ways that the case could have been decided for the plaintiff on narrow grounds, [29] but instead the majority reached out and overturned the principle that spending by for-profit corporations could be treated differently from spending by individuals. There is, of course, no mention of corporations making campaign expenditures in the First Amendment or any other place in the Constitution, nor is there any structural reason why the judgments of Congress and numerous state legislatures that campaign contributions by business corporations should be banned, or at least limited, should not be sustained, which are the two reasons why Dobbs rejected a constitutional basis for a right to an abortion. Furthermore, there can be no question as to the alignment between the outcome in Citizens United and the Republican party, because the Republican Leader in the Senate, Mitch McConnell, has been at the forefront of every recent challenge to campaign finance limitations. [30]

Just this term, in Federal Election Commission v. Cruz , [31] the Court further extended its willingness to strike down various forms of prophylactic measures designed to prevent actual corruption or the appearance of corruption in campaign financing. The provision at issue focused on money raised by federal candidates after they had won an election. It did not place any new limits on the amounts or sources of that money, but it did impose a cap of $250,000 on how much of the post-victory money could be used by candidates to pay off money that they had personally loaned to their campaigns, on the theory that the excess “campaign donations” would go right into the pockets of the winners, who would then be indebted to the donors for personally enriching them.

What makes this decision (written by the Chief Justice) so inconsistent with the “leave it to the elected representatives” theme in Dobbs is that this law was approved by the very same members of Congress who are likely to be most adversely affected by it. Thus, in contrast to some campaign finance laws, this provision would directly harm the members who voted for it. The reason is simple: The candidates who receive post-election contributions are typically only the winners of elections, and since most incumbents win re-election, their votes in support of this legislation were votes against self-interest, yet the Court said, in effect, we know better, and the law cannot stand.

However, the Roberts Court has been anything but activist when the result would injure the Republican Party, as it generally does in redistricting disputes. The Court’s ruling in Baker v. Carr [32] and the cases that followed it have found workable solutions to the problem of unequal numbers of residents in comparable legislative districts, by more-or-less strictly imposing a requirement of “one person, one vote.” [33] But the Justices have struggled and failed to solve the gerrymandering problem, in which, while the number of voters are equal, the lines have been drawn by partisan legislatures to produce outcomes that strongly favor the political party in power, generally, although not always, the Republican Party. It is not as if the Justices believe that partisan gerrymandering is constitutional; they concluded just the opposite in Vieth v.Jubelirer . [34] Instead, the Justice have held, most recently in Rucho v. Common Cause, [35] that they are incapable of devising a remedy that would not involve the Court in making the kind of political choices that federal courts are forbidden from making under the political question doctrine. [36]

Unlike the other cases, this one involves an excess of “judicial inactivism.” The problem, according to the Court, is its inability to draw lines in a manner that is judicially defensible and does not make the courts into political institutions. As the Chief Justice stated in his conclusion, “we have no commission to allocate political power and influence in the absence of a constitutional directive or legal standards to guide us in the exercise of such authority.” [37] But as Justice Kagan pointed out in her Rucho dissent, there are multiple ways that a court could review claims of partisan gerrymandering and at least strike down the most egregious among them. [38] Indeed, no court need actually draw the district lines, but instead it can send the case back to the legislature or other body charged with drawing the lines and order it do it again (and again) until they get it right, or at least not wrong. Attacking partisan gerrymandering does not require perfection, but it can surely produce re-drawn lines that do less harm to fundamental principles of democracy than do highly partisan gerrymanders, Democratic and Republican alike, as there were in Rucho’s two cases. More fundamentally, as Chief Justice John Marshall said in Marbury v. Madison , “it is a settled and invariable principle, that every right, when withheld, must have a remedy, and every injury its proper redress.” [39] And even if that Chief Justice overstated his point a little, he was surely correct in admonishing the courts that, when it comes to remedies, the perfect should not the enemy of the good, and at least the courts should be able to make the situation better, or less bad, than it was before.

Although not in a case involving election law, the Roberts Court (minus the Chief Justice) six months before Dobbs was overcome by another case of judicial inactivism. In Whole Women’s Health v. Jackson , [40] the majority refused to block the Texas law that created a system of exclusively private enforcement of its ban on all abortions after six weeks. The six-week ban plainly violated existing abortion law, although that is no longer true post- Dobbs . The author of the Texas law and the members of the Texas legislature that supported it embraced the fact that it was designed to chill doctors from performing abortions that were currently constitutionally protected by preventing any judicial review in federal court, with the only court review available in a case against a doctor who had violated the Texas law. As shown by the opinions of the Chief Justice Roberts [41] and Justice Sotomayor, [42] both dissents from the principal rulings, there were a number of paths to immediate federal-court review, although some would require extending existing doctrine in ways that had never been used before. But any extension would be necessary, because there had never been a law like this, whose principal goal was to deter conduct that was currently constitutionally protected. The majority did leave open one possible state-law means to obtain court review, but the Fifth Circuit, not surprisingly, referred the question to the Texas Supreme Court, which promptly closed that door. [43] The majority’s willingness to leave the Texas law in place can be explained (but not justified) by the fact that the Justices had already concluded, but not announced, that Roe was dead, and there was no reason to prolong its life.

III. Undermining Labor Unions

It is no secret that the Republican Party, as the party of business, has long opposed all efforts to strengthen the ability of workers to bargain collectively for wages and conditions of employment. In order for there to be vibrant labor unions, they must have the ability to require workers to pay agency fees (for those who do not wish to join the union) to support the union’s work on their behalf regarding wages, benefits, and other conditions of employment. Although most of the members’ mandatory dues and fees are spent to protect the economic interests of the workers, some unions used a portion of that money to support political, electoral, and social campaigns that not all members supported. In 1977, the Court in Abood v. Detroit Board of Education , [44] upheld the basic right of unions (in this case of public employees) to collect agency fees from those non-members that it represented. However, it also ruled that using any portion of those fees used for political expenditures violated the First Amendment rights of those who disagreed with the causes that the union leaders supported. It then required unions to set up rebate systems to accommodate those who chose not to be members, but who were required by law to pay their fair share of the non-political expenses of the union. The constitutional argument that prevailed for the objectors was that forcing workers to pay for political causes which they opposed was a form of compelled speech forbidden by the First Amendment. And while state legislatures for state employees had enacted laws requiring workers to pay dues or an equivalent, those laws did not specifically approve collecting and spending money for political and other purposes unrelated to collective bargaining. [45]

Abood and subsequent decisions left in place a system that, while not ideal for the unions, provided a tolerable accommodation. In addition, Congress in 1947, in the Taft-Hartley Act, had authorized states to enact “Right-to-Work” laws, under which individuals could not be required to join or even support a union as a condition of their employment, thus making it much harder for unions to organize and fund their activities on behalf of their members in Right-to-Work states. But the anti-unionists were not satisfied, and so they sought and obtained further relief from the Roberts Court. In Janus v. AFSCME , the Court, in another opinion by Justice Alito, following a series of cases in which the Abood rules gave increasing protection to objecting workers, extended the First Amendment to create a defense to workers who did not want to pay any money to support even the collective bargaining activities of all workers, overruling the part of Abood that sided with the union. [46]

The basis for the complaint was that the plaintiffs objected strongly to the positions that their union took in collective bargaining against the state, including those on behalf of the economic benefits for the workers that it represented. The Court concluded that the First Amendment protection extended to the right to oppose economic benefits that the union obtained for all the workers, and so the objecting plaintiffs did not have to pay their fair share of the costs of obtaining them. Although the Court eliminated the obligation of objectors to pay for any portion of the union’s collective bargaining activities, it did not lessen the union’s duty to treat all workers fairly, whether they contributed financially or not. There is, of course, no “constitutional right to free-ride” mentioned in the First Amendment, and the results are directly the opposite of what the elected representatives who enacted collective bargaining laws provided. [47] The result is just the opposite of the two principal bases in which the Dobbs opinion overturned Roe , but the anti-union outcome is exactly what the Republican Party wanted.

Another example involves the portion of the Fifth Amendment that prohibits governments from “taking private property for public purposes” without paying “just compensation.” [48] The Court has correctly realized that some intrusions other than the government acquiring ownership or seizing physical possession of a person’s land or other property may be so disruptive as to prevent the owner from being able to fully use it. On the other hand, the Court has also upheld laws that impose reasonable regulations on the way that owners may use their property. [49] Similarly, no one would doubt the right of the government to enter private property temporarily to assure that the owner is complying with generally applicable laws.

The issue in Cedar Point Nursery v. Hassid , was whether a California law that allowed union organizers to make limited visits to a farm to urge workers to join their union constituted the “taking” of the owner’s property in violation of the Fifth Amendment. [50] There was no claim that those visits actually interfered with the owner’s ability to engage in farming, that they deprived the owner of the use of any physical space while the organizers were on the premises, or that the owner suffered any monetary damage or loss of income from their presence (other than the possible loss of income if the workers organized and obtained higher wages). Nor was there a claim that the state permitted an unreasonably large number of visits by the organizers. According to the majority opinion of the Chief Justice, the repeated entrances constituted a trespass and hence an unconstitutional taking, even though the California legislators had reached a contrary conclusion and even though the state had “taken” nothing from the owner, other than the ability to exclude union organizers from using a small portion of the property for a short period of time. And, like the other cases, the California law was opposed by the business interests that support the Republican Party whose Presidents appointed the Justices who struck down the California law.

IV. Other Cases of the Roberts Court and Judicial Activism

In 2020 and 2021, the Roberts Court, in keeping with the Federalist Society wing of the Republican Party, moved ahead on a long-standing policy of theirs—giving greater power to the President over the administrative agencies under the “Unitary Executive” theory. In the first case, Seila Law v. Consumer Financial Protection Bureau , with the Chief Justice writing for the majority, the Court held that the statute that limited the ability of the President to remove the head of the Consumer Financial Protection Bureau (“CFPB”), except for good cause, was unconstitutional because it interfered with the ability of the President to carry out his constitutional obligation in Article I, Section 3 to “take Care that the Laws be faithfully executed.” [51]

There is no mention of the power to remove officers in either the Take Care or the Appointments Clauses, although that term is found in the Impeachment Clause. The director of CFPB and the other officers who have good cause requirements for removal are recent creations of Congress, and so there is no long-standing tradition that was offended when Congress specifically decided that no President should have the power to remove those officers at will. It is only at the highest level of generality that the text of the Take Care Clause can be said to create something approaching an absolute power of the President to remove those officers on the theory that, if he cannot, he will be held accountable for the maladministration of their agencies and thereby interfere with his Take Care responsibilities. [52] As for Justice Alito’s reliance on deference to the legislature in Dobbs , it is plain that Congress balanced the considerations for and against good cause removal and came to the opposite judgment from the one adopted by the Roberts Court.

At issue in a second case in which the Roberts Court relied on an expansive reading of the Constitution is United States v. Arthrex , [53] was a statute that assigned the duty to assess the validity of patents being challenged before the Patent and Trademark Office to administrative patent judges (“APJs”), who are appointed by the head of their department, the Secretary of Commerce. Relying again on the Take Care Clause, which does not “mention” patents or the use of administrative law judges, the Chief Justice concluded that the entire review process was invalid unless the decisions were made by, or subject to approval of, principal officers, [54] i.e., those who are appointed by the President with the advice and consent of the Senate, as set forth in the Appointments Clause. [55] However, that same Clause also allows Congress to enact laws providing for the appointment of “such inferior Officers as they think proper,” without Senate confirmation. Nevertheless, the Court concluded that it had the final say on whether an officer who performed certain functions had to be a principal officer, regardless of what Congress had decided in the law creating the office. In this instance, not only was there no textual basis for insisting on presidential control over basic administrative procedures, but the text of the Appointments Clause points in the direction of giving specific deference to Congress—“as they think proper”—when it assigns a duty to an inferior rather than a principal officer.

In addition to its expansive reading of the Free Speech Clause in Janus , the Roberts Court has also used that clause to advance other ends of the business community that the Republican Party generally supports. For example, consider Sorrell v. IMS Health, Inc . [56] When doctors write prescriptions, pharmacies keep records of the drugs prescribed and by which doctor. There is often more than one drug that a doctor can prescribe for a given ailment, and naturally drug companies would prefer that doctors prescribe one of their own. One way to increase the likelihood of that happening is for the company to send out representatives to visit doctors and try to sell them on the company’s products. Some doctors may say to a company representative that they prescribe a certain drug, but do not always follow through. One way that the companies can verify what a doctor is telling their salespeople is by gaining access to the records of the pharmacy, which will give the company a very good idea of each doctor’s prescribing practices.

Vermont decided that allowing pharmacies to provide such information to the drug companies was a bad idea, even though the practice did not give the companies any personal information about the identity of the patients. The doctors did not like being confronted with the records of their prescribing practice, and the Vermont legislature agreed with them, making it unlawful to provide that information. The data companies that collected the prescription information and sold it to the drug companies, claimed that the prohibition violated the First Amendment, and the Roberts Court agreed in Sorrell .

Although on its face, and according to the dissent of Justice Breyer, the Vermont law was no more than “a lawful government effort to regulate a commercial enterprise,” [57] that is not how the Roberts Court saw it. According to the majority, the law interfered with the free speech rights of the pharmacists, who wished to sell the prescription data, and the comparable rights to receive the information by the drug companies. The problem is not that freedom of speech is not mentioned in the Constitution; the problem is that the Court, in an effort to side with business at the expenses of doctors and others whom the Vermont legislature sought to protect, read the text at a high level of generality and greatly expanded the concept of freedom of speech to include basic economic regulation. By relying on the First Amendment, the Court was able to avoid a charge that they were relying on substantive due process (as in Roe ) to achieve their desired political result, which, to no one’s surprise, was the outcome favored by the Republican Party and its big business allies and opposed by the Obama administration.

The Roberts Court has also taken an expansive view of the Free Exercise Clause in the First Amendment, at least as applied to expanding the protections available to mainstream religions. Public education is an important responsibility of the states. The Court has long held that parents have a constitutional right to send their children to schools of their choosing, including religious schools, provided that the schools meet minimum state standards. Montana has a provision in its constitution that forbids the state from spending state funds to support religious schools. [58] Several years ago, the state decided that, for a variety of reasons, it needed to support private schools to supplement the state’s public secondary school system by providing for tax credits for the parents of students who attended certain eligible private schools. Consistent with the state constitution, no credits were available if the school was a religious-based one, and the denial of tax credits for donations to religious schools was challenged in Espinoza v. Montana Department of Revenue . [59] The Roberts Court sided with the three parents who argued that Montana was discriminating against religion, thereby interfering with the parents’ “free exercise” of their religion. From a text perspective, Montana did not interfere with the religious practices or beliefs of any person; it defended the case on the ground that the parents had no constitutional right to have the state subsidize the education of their children at a religious school. But the Roberts Court ruled that if the state were going to use tax credits to support private schools, it could not exclude otherwise qualified religious institutions, even though the state’s constitution and the wishes of the citizens of Montana were to the contrary. [60]

The Court continued on this broad reading of the Free Exercise Clause in Carson v. Makin, [61] handed down three days before Dobbs . At issue was a Maine law that provided funding to assist students in rural sections of the state that did not have a local public high school that they could attend to pay for private schools. The state had concluded that it did not wish to spend state funds to support any religious school, and the Roberts Court by a vote of 6-3 ruled that this exclusion was an unconstitutional incursion on the religious freedom of those otherwise eligible students who would rather attend a parochial school. The state did not, in the words of the First Amendment, “prohibit” any student from freely exercising their religious beliefs or interfere with any of their religious practices. Instead, it read the First Amendment, including its ban in the “establishment of religion,” to create a preferred status for religious schools so that states now must fund religious schools with tax dollars if they fund any private secondary education at all. Had Maine decided that bilingual schools or those that did not have competitive athletic teams were ineligible for state funding, those decisions would have been upheld, unlike religious schools that now have a preferred and non-textual place before the Roberts Court.

In the final area, there are two cases in which the Roberts Court has read the Constitution in an expansive manner to protect the right to bear arms in the Second Amendment. The first case, District of Columbia v. Heller , [62] was decided before three current members of the Roberts Court majority were appointed, but the other, New York State Rifle & Pistol Assn., Inc. v. Bruen , [63] was issued the day before Dobbs . Both rulings are further examples of an activist and non-textual interpretation of the Constitution when that approach serves the political ends of the Republican Party.

The extent of the protection of the right to bear arms in the Second Amendment has a significant ambiguity: How far does that right extend, and what deference should legislative determinations be given when states and localities seek to control the possession of certain arms in certain places? To begin, there is the introductory militia clause that is expressly included (mentioned) in that Amendment—“a well regulated Militia, being necessary to the security of a free State.” [64] Its scope was fully debated in the opinions in Heller and elsewhere. But for purposes of this essay, it only needs to be noted that the majority read the eleven words as functionally irrelevant. [65] Moreover, from the perspective of the second rationale for eliminating any constitutional basis for the right to an abortion in Dobbs —the lack of deference to the judgment of elected legislators—that was also present, but given short shrift in Heller . The District of Columbia’s judgment that handguns were a major source of crimes in that urban setting and that the District’s residents should be entitled to protect themselves in ways that other jurisdictions would find unnecessary, was simply disregarded because the “right” at issue was inconsistent with the Justices’ view of the role of privately owned firearms in our society— and that of the Republican Party. [66]

That approach was extended in Bruen where the plaintiffs objected to the requirement that a person seeking a permit to carry a concealed handgun in public had to show “proper cause,” which required more than an ordinary citizen’s concern for their safety. In siding with the challengers, the Court, by a 6-3 vote, established a new test by which all Second Amendment cases will be decided: If the practice was not regulated at the time of the Founding (or perhaps when the Fourteenth Amendment was adopted), and in a manner comparable to the law being challenged, the right to bear arms will prevail. [67] Thus, because New York City did not have a subway in 1789, and because there were no laws limiting the age at which firearms in that era could be owned or even possessed, state efforts to impose limits in those circumstances are likely to fail. Moreover, in contrast to Dobbs , which extolled the benefits of representative democracy, the Bruen majority was clear that while “judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate—it is not deference that the Constitution demands here” because the People struck the proper balance in the Second Amendment which are courts must follow. [68]

A word about the limitations of the claims made in this essay. First, United States v. Windsor [69] and Obergefell v. Hodges [70] are Roberts Court decisions in which the judicial activism side produced results contrary to the positions of the Republican Party. But there is an explanation for those outcomes that does not undermine the thesis of this essay: Justice Anthony Kennedy provided the deciding vote to strike down the laws in both cases that disfavored same sex couples, and he is no longer on the Court.

Second, the cases discussed in this essay do not include any criminal or statutory cases, which make up the bulk of the Court’s docket. And within the criminal docket, there are constitutional claims by defendants that may be viewed as seeking a result that some would see as judicial activist. My view is that including those cases would not alter the conclusions of this essay, but I recognize that further study of them might lead to another conclusion.

Third, I do not suggest that I have reviewed all of the constitutional decisions of the Roberts Court in civil cases or that they can all be explained in the manner described above. This essay examines only a few decisions, albeit important and controversial ones, and there are many others that may not fit this pattern, although not many that contradict it.

With those qualifications, I believe that the implicit charge against Roe —that it is a product of judicial activism—can also be made against many of the most important and most controversial decisions of the Roberts Court. If the charge of judicial activism can properly be based on a combination of an absence of textual support in the Constitution and a lack of deference to the decisions of the legislatures, then the Roberts Court has been as guilty of that charge on the same grounds that majority opinion in Dobbs found the decision in Roe to be.

The views expressed in this article are those of the author writing in their personal capacity. The views presented do not represent the American Constitution Society or its chapters.

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Judicial Activism and Restraint in the United States Essay

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Introduction

Arguments for judicial activism, arguments against judicial activism, conclusions.

Since 1947, judicial activism has been a hotly debated topic targeting judiciary and American judges. Besides being a permanent discussion, it has been studied and debated at length. In order to fully understand this concept, it is imperative to give it a proper cogency and greater coherence. To begin with, judicial activism may be defined as judges’ habit of diverting from the existing law when making rulings due to skewed political or personal interests. A critical example is whereby judges make rulings against those who have constitutional right by disregarding a formal model of law and basing their judgments mainly on pre-conceived ideologies. This essay explores the arguments for and against judicial activism and also examines potential conflicts between USA Patriotic rights and the 4 th Amendment rights.

The rubric for measuring judicial activism is wide and well elaborated in a continuum of dealings by federal judges such as wrong interpretation of accepted methodology, using a policy that is substantive, adjusting interpretations and doctrines that had been established earlier on as well as inventing theories and rights that are new in order to replace existing ones. Besides, judges can exceed court’s jurisdiction while exercising their powers, fail to follow precedent and be inconsistent when issuing an opinion. They can also take sides when making decisions, use remedial powers that are broad and disregard the originalist view when interpreting the constitution. Other conceptions regarding judicial activism emanating from politicians, media, lay people and the scholarly class include issuing holdings that are not minimalist but maximalist alongside failing to follow traditional modes of judgment similar to their predecessors.

Arguments that support and oppose judicial activism may be based on how individuals have decried judicial activism, praised and attacked with equal strength some of the opinions made by judges. Today, the populace and politicians in general continue to display a continuum of reactions. This may not be a strange practice at all since it has been embraced from the beginning. For instance, the move to have chief justice Earl Warren removed from the bench in the 1950’s by the Supreme Court triggered a dramatic response from the public (Pothier, 2010). The then case was involving relations of the church, state and desegregation. The judges’ decisions were influenced by the public. From that time to date, the tendency of overstepping the legal mandate and constitutional provisions by federal judges has increased. As a result, they have been sharply criticized by the public. However, they still enjoy significant support from various quarters and hence continue to invalidate laws and remain without abdication. Indeed, the constitution continues to suffer great violation from these judges.

Judicial activism has been greatly criticized. However, it is worth observing that these criticisms have played an integral role of bringing to birth, judicial independence which is also is more robust. The constitution guarantees protection to federal judges whether they make unpopular rulings that are also illegal or not. Even though criticisms against judicial activism may be seen as a potential threat to judicial independence, Article III of the ruling constitution indicates clearly that based on their “good behavior” they are guaranteed positions in their offices for as long as they live (Pothier, 2010). Basically, their authority is absolute in whatever decisions they make. In addition, certain important individuals have set up a framework that protects and offer independence to the judiciary system from impartial undermining of decisions made by people, politicians and the government. In fact, the law permits impartial administration of justice and interpretation of laws for purposes of preservation of character, property and life of every individual (Yung, 2011). In this sense, the 4 th Amendment can be used by judges to protect citizens from unreasonable harassments which are seemingly allowed by USA patriotic Act allows. It is important to underscore the fact that while USA Patriotic Act may be presenting itself as the best method for combating terrorism, it infringes on individual rights that have been protected by the 4 th Amendment.

Judicial activism is important in guarding individual’s rights, the constitution and minority parties in the community from gross oppressions and innovations from the government that spell danger to certain individuals. An example is the US Patriotic Act, which allows search of financial and medical records, communications, e-mail, telephone conversations and so on of foreign individuals. As a matter of fact, it infringes on the privacy of individuals and depicts them as potential criminals (Pothier, 2010). Ideally, I agree with the 4 th Amendment that restricts such capitalist practices by allowing searches to be done through a court order supplied with enough information. Impartial decisions made by the activist judges to protect the rights of individuals from the influence of conjectures of USA Patriotic Act, which are ill motivated, puts as a prerequisite the independence of judges.

To start with, even though it is a requisite for judges to be independent in order to protect minority parties and individuals from oppressions and government innovations, judicial activism by all means need to be criticized and abolished. Even though there is an inescapable tension between USA Patriotic Act and the 4 th Amendment, judicial restraint must be exercised by the federal judges (Yung, 2011). During decision making, federal judges should be guided by principles surrounding judicial restraint so that factors that are extraneous don’t influence them (Pothier, 2010). They should be able to draw a line between what is legally sound and what is popular. In this sense, whatever decisions they make must be relevant and sound. They should not be irrelevant, ill-motivated and bent towards public approbation. The law itself provides solutions that are fair and just and therefore, personal views, views from an au corant moral philosopher, personal opinions, preferences and policies should neither be a basis nor source of consultation for any judge making decisions when construing a statute or the constitution (Yung, 2011).

Judicial restraint is important since it ensures that judicial powers don’t exceed their scope. When set free, judicial activism plays a role of retaliation through unpopular ways of applying the law. Federal judges use their own preferred policies to make judgments and twist the law in favor of certain people. Consequently, they lose their accountability and their jurisdiction is stripped from them. For instance, in 2005, Marriage Protection Act was created to bar the federal court from looking into the controversial issue of the same-sex marriage and its constitutionality (Pothier, 2010). Again, another Act referred to as Detainee Treatment Act of 2006 stripped federal courts of jurisdiction due to the perception the public had over it of judicial activism.

To sum up, it is true that federal courts survive under great pressure from external forces that influence decisions in cases they handle. Even though American judges still preserve their integrity in their bid to make good judgments, it is worth noting how negative effects springing from criticisms coming from the elite influence their decisions. Solving this problem requires proper strategies and measures to take away fear that federal judges have of the appointing authority, public pressure, political influence and the senate. The judges should be independent if they are to be impartial in their rulings.

Pothier, D. (2010). Power Without Law: The supreme court of Canada, the marshal decisions, and the failure of judicial activism. Dalhousie Law Journal, 33(1), 189- 197.

Yung, C. (2011). Flexing judicial muscle: an empirical study of judicial activism in the federal courts. Northwestern University Law Review, 105(1), 1-60.

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Judicial Activism: The Good, the Bad, and the Ugly

Arthur D. Hellman , University of Pittsburgh School of Law Follow

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No matter how judges are selected, sooner or later some unfortunate candidate will be labeled a "judicial activist." One has to wonder: Does the term have any identifiable core meaning? Or is it just an all-purpose term of opprobrium, reflecting whatever brand of judicial behavior the speaker regards as particularly pernicious? Implicit in this question are several important issues about the role of courts in our democratic society.

I take my definition from Judge Richard Posner, who describes activist decisions as those that expand judicial power over other branches of the national government or over state governments. Unlike other uses of the term “activism,” this definition does not refer to judicial decisions that overrule a court's own precedents and is indifferent to whether the decisions are liberal or conservative in outcome.

The principal advantage of this approach is that it permits a more useful discussion of when activism is legitimate and when it is not. And although we may not be able to agree on whether particular activist decisions are good or bad, we may be able to agree on the criteria for making that evaluation and how they should be used.

Recommended Citation

Arthur D. Hellman, Judicial Activism: The Good, the Bad, and the Ugly , 21 Mississippi College Law Review 253 (2002). Available at: https://scholarship.law.pitt.edu/fac_articles/257

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Judicial activism

This article has been written by Naveen Talawar , a law student at Karnataka State Law University’s law school. The article is an insight into judicial activism, its background, and its evolution in India.

This article has been published by Sneha Mahawar .

Table of Contents

Introduction

Lord Hewart, CJ, who is famous for saying, “ It is fundamentally important that justice not only be done but also be clearly and undeniably seen to be done, ” gave rise to the concept of judicial activism, which manifested itself in the decisions of numerous so-called “activist” judges. They have been held accountable for bringing justice to the doorsteps of the citizens, even if it means taking unwarranted and unnecessary measures. By stretching the letter of the law a little and acting according to the spirit behind it, the judiciary has intervened in cases where there is a blatant misuse of executive discretion or an unconcerned attitude toward booking the corrupt and other anti-social elements in society.

Under the Indian Constitution , the State has the primary responsibility for ensuring the country’s justice, liberty, equality, and fraternity. The State is obligated to protect the fundamental rights of individuals and to implement the Directive Principles of State Policy . To prevent the state from evading its responsibilities, the Indian Constitution has granted the Court’s inherent powers to review the state’s actions. In this context, the Indian judiciary has been regarded as the protector and guardian of the Indian Constitution.

Following its constitutional obligation, the Indian judiciary has actively defended individuals’ fundamental rights whenever necessary from the state’s unjust, unreasonable, and unfair actions or inactions. By upholding human rights, the judiciary has come a long way in terms of judicial activism, from defending the rights of women in the workplace to implementing the fundamental principles of sustainable development. The judiciary has approached every aspect of human life and proven to be an advantage for the poor by shifting from the “Locus Standi” principle to Public Interest Litigation (PIL). 

Origin and development of judicial activism 

The theory of judicial activism emerged during the judicial review process in the United Kingdom. The British Constitution is an example of an unwritten constitution that allows for judicial activism. During Stuart’s reign (1603-1688), the unwritten constitution created the possibility of judicial review, and thus judicial activism was born.

The judicial review principle was established in 1610 by Justice Edward Coke. In the Thomas Bonham v. College of Physicians case (1610) , he made the decision that any law passed by parliament that is against common law or reason can be reviewed and declared void by the courts. This theory of judicial review and, correspondingly, judicial activism was supported by Sir Henry Hobart, who succeeded Sir Edward Coke as Chief Justice of the Court of Common Pleas in 1615.

The first significant case involving the idea of judicial review was Madbury v. Madison (1803) , in which the US Supreme Court explicitly declared certain provisions of the Judiciary Act of 1801   unconstitutional. For the first time in American history, a court declared a piece of legislation to be unconstitutional. Since the Supreme Court ruled that federal courts have the authority to invalidate unconstitutional laws, judicial review has gained popularity in the United States.

However, the exact phrase “judicial activism” was used by Arthur Schlesinger Jr. in his article “ The Supreme Court: 1947 ,” which appeared in the January 1947 issue of Fortune Magazine. He used the phrase to categorise the American Supreme Court judges at that time as judicial activists, champions of self-restraint, and judges positioned in between the two sections. 

Further, the American judiciary used the power of judicial review to usher in the era of judicial activism in 1954, with the landmark case of Brown v. Board of Education (1954) , where the US Supreme Court ruled unanimously (9-0) that racial segregation in public schools violated the Fourteenth Amendment to the Constitution, which forbids states from depriving anyone within their jurisdictions of equal protection under the law . Furthermore, the Supreme Court in the case of Plessy v. Fergusson (1896) not only abolished laws that treated Black people as a separate class but also guaranteed such rights that were clearly provided for in the Constitution.

The term “judicial activism” was later used on numerous occasions, but the first time a judge used it in a court was in the case of Theriot v. Mercer in 1959. In a related case, Judge Joseph C. Hutcheson used it to oppose a dissenting judgement. He was opposed to judicial activism and the outcomes it sought. The usage also made reference to the shift in connotation that took place in the middle of the 1950s. Some judges viewed the term “judicial activism” as an encroachment.

Furthermore, the ability to engage in judicial activism became a requirement for the existence of an independent judiciary in nations that upheld the rule of law, and other modern democracies quickly followed, giving rise to the concept of judicial activism.

What is judicial activism 

The concept of “judicial activism” is opposed to the idea of “judicial restraint.” Both of these terms are frequently used to describe the assertiveness of judicial power, and they are also used from the perspectives of personal and professional views, putting the courts in a position to lean towards one of the views to play the appropriate role. The terms “judicial activism,” “judicial supremacy,” “judicial absolutism,” “judicial anarchy,” and others are frequently used interchangeably in the United States. The term “judicial activism” is also regarded as ascriptive. This implies that the judges’ performance is based on their ideologies, opinions, values, and interests.

The scope of judicial activism is so broad that no precise definition exists. It does not have a statutory definition because each jurist or scholar defines it differently. Supporters of judicial activism claim it to be a proper form of judicial review.  In contrast, Thomas Jefferson refers to it as the ‘despotic power’ of Federal Judges. According to V.D. Kulshrestha, judicial activism occurs when the judiciary is charged with actually participating in the law-making process and subsequently emerges as a significant player in the legal system.

In contemporary definite terms, judicial activism is frequently seen as a way to correct executive faults by using democratic power within the limits of the Constitution.  It is said that judicial activism empowers judges to act as individual policymakers and independent trustees on behalf of the citizens of the country, in addition to their traditional role. In general, judicial activism refers to the judiciary’s proactive role in correcting errors made by the executive or legislative branches to ensure the efficient coordination of all three crucial pillars.

The discussion above clearly demonstrates that the term “judicial activism” refers to a broader concept. The meaning of the phrase is ambiguous. It is impossible to combine all of it into one concise definition. There are numerous ways to define and comprehend judicial activism. Judges of the Supreme Court and High Courts have rendered several contentious rulings over the past few years that have sparked heated debate. However, it is still unclear exactly what is meant by the term “judicial activism.”

Evolution of judicial activism in India

In the early years after independence, India’s courts were technocratic in nature. Although the goal of justice did not always coincide with this fundamental aspect of how courts functioned, the judiciary was more concerned with following the procedures that were expected of it. To put it another way, the majority of judges at the time were not as creative and did not bother to look for ways to carry out the goal of justice for which they held their positions. Some judges in the British Empire and a newly independent India went out of their way to issue decisions that are now regarded as foundational examples of judicial activism.

The beginning of judicial activism can be traced back to 1893 when Justice Mehmood of the Allahabad High Court issued a dissenting decision that sowed the seeds of activism in India. The case involved an undertrial who couldn’t afford legal representation. In his dissenting opinion, he criticised the rule that appeals should be dismissed solely on the basis that the appellant is unable to pay for the translation and printing of the record in English. This amounted to some form of activism meant to defend the severely harmed undertrials. Although it didn’t sit well with the English judges on the bench, J. Mahmood was forced to resign for using these tactics in court.

Furthermore, the concept of judicial activism in India gained more traction in the late 1960s or early 1970s, when Mrs. Indira Gandhi served as Prime Minister and Mohan Kumaramangalam, a renowned attorney and legal luminary, served as the Union Minister. In order to better serve the interests of the poorer sections of society, the late Mrs. Gandhi attempted to put into practice her favourite slogan, “ Garibi Hatao ” (remove poverty), by abolishing the privy purses and privileges granted to the former rajas and princes of the princely States of pre-independent India and nationalising the 14 major banks. However, the conservative judiciary took it personally and overturned her attempts. 

Mrs. Gandhi responded strongly and unequivocally, viewing the Supreme Court of India’s ruling in the Privy Purse abolition and bank nationalisation cases as an example of judicial overreach. On the recommendation of Mr. Kumaramangalam, it is believed that the conservative and senior Supreme Court justices who participated in the majority decisions in the aforementioned cases were passed over for appointment to the position of Chief Justice of India. The appointment of the dissenting judge, Mr. A.N. Ray, who was fourth in the line of seniority, led to the resignation of the three senior judges (Justices Hegde, Shelat, and Grover). This served as the foundation for the theory of judicial activism, which emerged as a result of the conflict between the executive and the judiciary. 

Early cases of judicial activism 

The following Supreme Court rulings provide insight into the development of judicial activism in independent India.

During the reign and dominance of British courts, the Supreme Court functioned as a technocratic court, but it gradually began to take an activist stance. The first landmark case in this regard was A.K. Gopalan v. the State of Madras (1950) , in which a writ was filed to determine whether detention without trial was a violation of fundamental rights under Article 14 , 19 , 21 , and 22 . The Supreme Court opined that the written Constitution contains the authority for judicial review. Even though the challenge was unsuccessful, it did start a new legal trend that became apparent in the years that followed.

Freedom of press

In the case of Sakal Newspapers Pvt. Ltd. v. Union of India (1962) , the government sought to regulate the number of pages in relation to the price of the newspaper in accordance with the Newspaper Act of 1956 and order of 1960. The Supreme Court ruled that newspapers could not be subject to the same regulations as other businesses because they served as a forum for the exchange of ideas and information. This decision broadened the protections for free speech provided by Article 19(1)(a) of the Constitution.

Reservation policy

In the case of Balaji v. State of Mysore (1963) , the Supreme Court reasoned that economic backwardness was the root cause of social backwardness. The Court distinguished caste from class and ruled that caste should not be used to assess backwardness. Additionally, it was decided that the reserved category’s percentage of the total should not exceed 50%. It was decided that Article 14, as well as the subsets of Articles 15 and 16 , must be complied with. Similar limitations on the reservation were imposed by the Court in the case of Chitralekha v.  State of Mysore (1964) .

Doctrine of prospective overruling

The doctrine of prospective overruling first appeared in the American legal system.  It states that a decision made in a specific case will only affect the future and will have no retrospective effect on previous decisions. In Golaknath v. State of Punjab (1971), the Supreme Court of India pioneered the idea of “prospective overruling” while addressing the constitutional validity of the 17th Amendment to the Constitution and determined that Parliament lacked the authority to amend Part III of the Constitution or to abridge any of the fundamental rights.

Doctrine of basic structure

In the case of Keshavananda Bharti v. State of Kerala (1973) , the Supreme Court issued a decision that is regarded as a watershed moment in Indian constitutional jurisprudence. While addressing the scope of the amending power conferred by Article 368 of the Constitution, the Court developed the theory of “basic structure.” By a 7:6 majority, a Bench of 13 judges ruled that Parliament had broad powers to amend the Constitution but that power must not abridge or destroy the basic structure or basic framework of the Constitution.

Habeas corpus case

The case of ADM Jabalpur v. Shivkant Shukla (1976) , in which Article 21 was brought up, resulted in the most contentious Supreme Court decision regarding judicial activism. The majority of the Bench hearing the case of ADM Jabalpur held that in cases of dire emergencies, such as those that existed between 1975 and 1977, a legal procedure could be established, following which even human life could be taken away. Although Justice Chandrachud, who wrote the decision, faced criticism for penning a pro-government opinion, the legal theory he advanced was an excellent illustration of judicial activism.  Justice Chandrachud has interpreted Article 21 in this manner and upheld the legality of legislation requiring acceptance in order to maintain the country’s sovereignty if it is threatened by either internal or external aggression.

Some other cases

In the case of Maneka Gandhi v. Union of India (1978) , Maneka Gandhi argued that the government had violated her personal freedom by seizing her passport. The court ruled that the seizure of the passports was unlawful. The A.K. Gopalan case ruling was overturned by the Supreme Court, ensuring the legitimacy of personal liberty under Articles 14, and 21.

In Minerva Mills v. Union of India (1980) , the Supreme Court rejected the attempt by the government to overturn the Kesavananda Bharti decision and usurp unrestricted power to amend the Constitution to its liking. As a result, the Court decided that judicial review is an essential part of the legal system and that Parliament is not permitted to broaden the purview of the previously granted limited powers.

Furthermore, Justice P.N. Bhagwati, India’s father of judicial activism, strengthened the concept in several decisions, including Hussainara Khatoon v. Home Secretary, State of Bihar (1979) , and Khatri v. the State of Bihar (1981) . This paved the way for it to be used as a tool in the hands of judges to ensure complete justice.

Thus, the evolution of judicial activism in India can be divided into three broad stages: 

• 1950-1970: The period of the classical judiciary, which did not engage in any kind of activism.
• 1970-2000: The period in which the judiciary and judges established the concept of judicial activism and it gained popularity. 
• 2000-till now: Judicial activism has flourished and touched various aspects, but it has also been infested by judicial overreach.

Constitutional powers of the Supreme Court and High Courts in India 

Judicial activism is the practice of using the courts’ authority to examine state actions. According to Articles 32 and 226 of the Indian Constitution, the higher judiciary has the power to consider any legislative, executive, or administrative action as unconstitutional and void if it does so. One of the core provisions of the Indian Constitution is the right to judicial review.

Article 32 of the Indian Constitution 

Article 32 of the Indian Constitution provides that every person has the right to directly file a case with the Supreme Court of India for the enforcement of their fundamental rights. Any fundamental right under Article 32 may be enforced by an order or writ issued by the Supreme Court.

The Supreme Court held in Fertilizer Corporation Kamgar Union v. Union of India (1981) that the Supreme Court’s authority granted by Article 32 is an important part of the fundamental framework of the Indian Constitution because “ it is meaningless to confer fundamental rights without providing an effective remedy for their enforcement, if and when they are violated .” It cannot be suspended, even in an emergency. In many cases, the Supreme Court has increasingly used a very liberal interpretation of Article 32 to uphold fundamental rights even when faced with private entities performing public duties.

Article 226 of Indian Constitution

Article 226 of the Indian Constitution provides that the High Courts have the power to issue any suitable order or writ for the enforcement of basic rights and other legal rights. In this case, it appears that the High Court’s jurisdiction under Article 226 goes beyond the Supreme Court’s jurisdiction under Article 32. Articles 32 and 226 form the foundation of the Indian Constitution. Furthermore, the High Court was also granted authority over lower courts, tribunals, and special courts by Article 227 .

Article 136 of the Indian Constitution

In addition, the Supreme Court may grant special leave to appeal any judgment, decree, determination, sentence, or order made by any court or tribunal in any cause or matter under Article 136 of the Indian Constitution. In situations where there has been grave injustice or there is a significant legal issue, the Supreme Court uses its unique authority.

With the discretionary authority provided by Article 136, a case may be decided in accordance with justice, equity, and good conscience. However, it needs to be used carefully and with caution. In Pritam Singh v. the State (1950) , the Supreme Court ruled that the broad discretionary power granted by Article 136 should only be used in exceptional circumstances. 

Additionally, the Supreme Court created the idea of the curative petition in the case of Rupa Ashok Hurra v. Ashok Hurra (2002) ,  while debating whether an aggrieved person has any right to relief even after the Supreme Court’s final decision.

Article 142 of the Indian Constitution

Article 142 of the Indian Constitution, which gives the Supreme Court the authority to issue an order to ensure full justice in the case at hand, is the most significant provision in relation to judicial activism. The Supreme Court’s decision in M Siddiq (D) Thr Lrs v. Mahant Suresh Das and Ors (2019), also known as the Ram Janmabhoomi/Babri Masjid case, overturned the Allahabad High Court’s (2010) ruling in accordance with Article 142 of the Indian constitution, is an illustration of such an order.

The Supreme Court of India has the authority to enact laws under Article 142 of the Indian Constitution, despite the fact that the Parliament of India retains the primary authority to do so. The order will be in effect until Parliament passes legislation to address the problem, but it should be noted that this Article can be invoked when there is a gap in the law or the order is in the public interest.

Notable forms of judicial activism 

The invention of public interest litigation .

Judges like V R Krishna Iyer, P N Bhagwati, Chinnappa Reddy, and D A Desai supported judicial activism and issued numerous decisions addressing people’s fundamental rights. It is frequently claimed that the development of public interest litigation and the ensuing liberalisation of the Locus Standi rule are the roots of judicial activism.  PIL was conceived with the noble goal of empowering the oppressed, poor, and needy by ensuring justice for them by relaxing the rigour of Locus Standi .  

Since the 1970s, the Supreme Court has accepted genuine cases even from people who are not affected. Public Interest Litigation encompasses situations in which the general public interest has been violated or harmed as a result of official indifference and the decisions made in these cases fall under the umbrella of judicial activism. PIL guarantees justice for a larger group of people who do not have access to it. In India, social activists and public interest litigators have actively supported the higher judiciary in advocating measures to ensure the welfare of the oppressed, underprivileged, and exploited classes.

The judiciary has evolved into a reformer with the ability to influence socioeconomic situations. The PILs provide an overview of how proactive Indian courts work to change society. So far, the Supreme Court has considered the issue and the rights of children and women, oppressed and vulnerable groups in society, bonded labour, casual labour, mentally and physically handicapped, undertrial prisoners, detainees, and convicted persons held in custody, and so on.

Judicial decisions on PILs

• The practice of taking matters of public importance directly to the Supreme Court began with the case of Maharaj Singh v. State of Uttar Pradesh (1976). In this case, the court agreed that a lack of legal standing would not be sufficient to dismiss a case where harm had been done to the community. The term “PIL” was first used by Justices Iyer and Bhagwati in the Fertilizer Corporation Kamgar Union case. The Court’s decision also referred to petitions that were submitted in the form of letters as having epistolary jurisdiction.
• In Hussainara Khatoon v. State of Bihar (1979), a petition was filed with the Supreme Court in response to newspaper articles about the circumstances surrounding undertrials in prison. Some of the defendants had already served more time than was permitted for the crime for which they were detained. The cases were pending for years before an overburdened judiciary, and those on trial were unable to obtain bail because they did not have enough money to pay as bonds and sureties. As a writ, the petition was approved. If they were unable to raise the required bail sum, Justice Bhagwati and the other judges on the bench mandated their release on personal bonds. They claimed that a speedy trial was a fundamental right that couldn’t be restricted due to money. The right to unrestricted access to legal representation is part of the court’s ruling on both the right to life and the right to personal liberty. With this ruling, the judicial system fixed a flaw, and thousands of people facing such undertrials have been granted bail since then.
• The court in SP Gupta v. Union of India (1982) also acknowledged the disadvantageous circumstances facing many citizens and ruled that anyone with sufficient interest and a sincere intention could petition the court on their behalf. They argued that the court would treat letters as writ petitions and proceed accordingly and that procedures are nothing more than the handmaidens of justice and cannot be rejected solely for technical reasons.
• The Supreme Court ruled in People’s Union for Democratic Rights v. Union of India (1982) that public interest litigation is distinct from the conventional adversarial justice system. The court claims that the goal of public interest litigation is to advance the public good. Public interest litigation was created to provide justice to the poor and other socially or economically disadvantaged members of society. Such a large number of people’s constitutional or legal rights should not go unnoticed.
• In the Municipal Council, Ratlam v. Vardichand (1982) , the Court accepted a writ petition submitted by a group of citizens seeking orders against the local municipal council for the removal of open drains. The Court stated that if “ the centre of gravity of justice is to shift, as indeed the Preamble to the Constitution mandates, from the traditional individualism of Locus Standi to the community orientation of public interest litigation, the court must consider the issues as there is a need to focus on ordinary men .” In a similar vein, the Supreme Court of India accepted a petition for court orders to safeguard the lives of people who used the Ganga’s flowing water as public interest litigation in the case of M.C. Mehta v. Union of India (1988) . In this case, the court ordered local governments to take appropriate action to stop Ganga River pollution.

Thus, the goal of public interest litigation is to ensure justice for the most vulnerable members of society, whereas judicial activism is a tool for ensuring justice for all members of society. The Supreme Court and the high courts have used their judicial activism authority to issue numerous rulings since the declaration of the emergency.

The Basic Structure Doctrine 

In addition to creating procedural techniques, the Supreme Court’s activism has enriched jurisprudence with pioneering concepts like the basic structure doctrine. According to this, any amendment that alters the basic structure of the Constitution is unconstitutional.

The Supreme Court ruled in Kesavananda Bharati v. the State of Kerala that the power to amend the Constitution guaranteed by the Constitution did not include the possibility of amending the most fundamental and essential elements of the Constitution. The Constitution’s underlying framework cannot be altered by any amendment. The majority defined the fundamental elements of the constitution as the rule of law, secularism, federalism, equality, and democracy.

Following the Keshavananda Bharati ruling, the Supreme Court invalidated a number of Constitutional Amendments, putting their fundamental test of basic structure. The 39th Amendment was declared unconstitutional by the court in Indira Nehru Gandhi v. Raj Narain (1975) because it sought to uphold Mrs. Gandhi’s election after it had been declared invalid by the Allahabad High Court and while her appeal was still pending before the Supreme Court.

In Minerva Mills Ltd. v. Union of India (1980), the Supreme Court ruled that Parliament had expanded its limited power of amendment contained in Article 368 into absolute power.

In Kihoto Hollohan v. Zachillhu (1992) , the Supreme Court determined that paragraph seven of the Constitution’s 10th Schedule , which prohibited judicial review of the Speaker’s or Chairperson of the House’s decision regarding the disqualification of MLAs or MPs, violated the basic structure of the Constitution.

By developing the basic structure doctrine, the Supreme Court ensured that at least some fundamental rights of the underprivileged, minorities and weak cannot be curtailed by the Constitution, not even through Constitutional Amendments. 

Article 21 and judicial activism

If there is a Supreme Court decision that has revolutionised the interpretation of Article 21, which safeguards the right to life and personal liberty, it is Maneka Gandhi v. Union of India (1978) . This decision has awakened the Indian judiciary from a persistent state of dormancy with regard to the right to life and the freedom of the individual guaranteed by Article 21 of the Constitution.

A new interpretation of Article 21 of the Indian Constitution was provided by the Supreme Court of India in the case of Maneka Gandhi v. Union of India . It set a great precedent for the further evolution of concepts of reasonableness and fairness. According to the Supreme Court, the concept of life encompasses not just a mere animal existence but also an existence with all the rights that entails. The Supreme Court declared for the first time that simply outlining a process for denying life and liberty is insufficient; the process itself must be just and reasonable.

To protect the rights of millions of people who lack access to justice, Article 21 of the Constitution was expanded to include a broader definition of life, personal liberty, and “procedure established by law.” It actively denounced the abuse of power and inaction on the part of public officials as it fought for the interests of the average citizen. A few cases are as follows:

In the case of P. Rathinam v. Union of India (1994) , the Court was asked whether the right to die falls under the purview of the right to life. The majority of the Bench found that it does, and Section 309 of the Indian Penal Code was ruled invalid and unconstitutional. This was overruled in the case of Gian Kaur v. State of Punjab (1996) , where the Court ruled that while Article 21 does include the right to die with dignity, the right to life does not include the right to die and that committing suicide is punishable under Indian law. Furthermore, the Supreme Court determined that passive euthanasia is covered by the definition of the right to life under Article 21 in one of the most well-known cases, Common Cause (A Regd. Society) v. Union of India (2018) .

The right to privacy is now recognised as an essential component of the right to life and personal liberty. The sanctity of a person’s private sphere is upheld by the ruling in the case of Justice K.S. Puttaswamy (Retd.) v. Union of India (2018) . The “right to be alone” is only one aspect of the right to privacy, and it has grown significantly since then.  It includes the freedom to make important personal decisions without unjustified state interference, including those involving intimate sexual behaviour.

In the case of Navtej Singh Johar v. Union of India (2018) , the Supreme Court declared a portion of Section 377 of the Indian Penal Code to be unconstitutional and stated that it “violates the right to life and liberty guaranteed by Article 21, which encompasses all aspects of the right to live with dignity, the right to privacy, and the right to autonomy and self-determination with respect to the most intimate decisions of a human being”.

In the case of Shakti Vahini v. Union of India (2018) , the Supreme Court ruled that the right to choose one’s life partner is a fundamental right protected by Article 21 and ordered the government to take all reasonable preventive steps to prevent honour killings and related crimes.

In the case of Olga Tellis v. Bombay Municipal Corporation (1986) , the Court stepped in to support pavement dwellers in Bombay by pointing out that the right to life also includes the right to a livelihood.  In the M.C. Mehta case, Article 21 recognised the right to a pollution-free environment as a fundamental right. 

The pro-environmental stance of the judiciary 

The Indian judiciary has taken an active role in protecting the environment for the benefit of the population. Given that a pollution-free environment was deemed to be a fundamental right pursuant to Article 21 of the Constitution, the Indian judiciary deserves all the credit for sustainable development and environmental protection. The courts have decided on a number of historic rulings requiring public bodies to address environmental issues. 

One of the judiciary’s most crucial tools was Public Interest Litigation.  Several cases involving environmental protection, preservation, and sustainability have been handled through PIL, making environmental protection a constitutional duty and obligation. The principles and doctrines that have enriched environmental jurisprudence have steadily grown as a result of PIL cases and the accompanying activist approach of the judiciary.

The Indian Supreme Court’s interpretation of the scope of the authority granted by Article 32 of the Indian Constitution to issue directions and orders ‘whichever may be appropriate’ in appropriate proceedings led to the establishment of the doctrine of absolute liability for harm brought on by hazardous and inherently dangerous industries. There are no exceptions to the newly developed doctrine of absolute liability for damages brought on by industry engaged in hazardous and inherently dangerous activities. This doctrine substitutes the English common law’s strict liability rule. This rule was developed in the case of M.C. Mehta v. Union of India (1987) , also known as the “oil gas leak case.”

The Court in the above case held that the addition of exceptions to the rule, such as an act of God, the plaintiff’s default, the plaintiff’s consent, an independent act of a third party, and statutory authority, greatly diminished the strict liability principle developed in England more than a century ago in Rylands v. Fletcher (1868) . The Supreme Court ruled that cases involving the determination of liability in hazardous and inherently dangerous industries in India did not fall under the exceptions to the strict liability principle.

Since then, beginning with the Rural Litigation Kendra case (1985) , the Court has introduced concepts like “sustainable development,” “polluter pay,” and the public trust doctrine principle. It has also adopted some other concepts from international treaties like the Stockholm Declaration , Rio Declaration , Kyoto Protocol , Biodiversity Convention , various United Nations Environmental Programs, and so forth. 

In a progressive development of environmental jurisprudence, the Supreme Court elevated the right to a clean and healthy environment to the status of a fundamental human right under Article 21 of the constitution. India’s environmental governance has benefited from the application of such a constitutional shield to environmental concerns through active judicial activism. The Supreme Court has changed the definition of life from mere animal existence to a meaningful existence through a number of judicial decisions.

In Milkman Colony Vikas Samiti v. State of Rajasthan (2007) , the Supreme Court ruled that the right to life includes the right to a clean environment, which contributes to a healthy body and mind. In Arjun Gopal and others v. Union of India and others (2018) , the Supreme Court stated, “No one may be permitted to infringe on the right to health of others, granted under Article 21, under the guise of celebration.” 

Justice Shah stated, “We cannot endanger the lives of many people for the sake of a few. The right to life of innocent people is our top priority .”

India’s courts have played a special role in continuously advancing the notion of a decent life by addressing and resolving a variety of environmental issues. In addition to being a human right, everyone in nature, including human and non-human creatures, has a right to a clean and healthy environment. By adopting an activist stance, the Indian court has upheld the right to a clean and healthy environment that is guaranteed by the constitution.

Women empowerment 

The role of judicial activism extends beyond the aforementioned forms. Another area where this has been seen is in women’s empowerment. The judiciary has made significant progress in preventing workplace exploitation of women and improving conditions for women. 

This was also made clear in the case of Air India v. Nargesh Meerza (1981), where the Supreme Court ruled that the rule requiring an air hostess to leave the workforce following her first pregnancy was invalid, unconstitutional, and in violation of Article 14 of the Indian Constitution.

In Mohd. Ahmed Khan v. Shah Bano Begum and Others (1985) , the Supreme Court overruled Muslim Law and extended the period of Iddat from four months and ten days to provide justice to Shah Bano Begum. 

In Vishakha v. State of Rajasthan (1997) , the Supreme Court issued guidelines for the prevention of sexual harassment cases under Article 32 read with Articles 141 and 142. These regulations from 1997 have been replaced by the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act of 2013 .

In the Railway Board v. Chandrima Das (2000) case, employees of the Indian Railway gang-raped a Bangladeshi national in a room at Howrah’s Yatriniwas station. The government argued that it was immune from liability under tort law because the ‘Yatriniwas’ were not committed while it was performing its official duties. The Hon’ble Court, on the other hand, rejected this claim, stating that the Union of Indians employees, who are in charge of managing the establishment, including Yatrinivas and the railway station, are important components of the machinery of government that carries out commercial activity. 

If any of these employees violate the law, the union government where they work can be held vicariously liable for compensating the victim of their actions, provided that other legal requirements are met. The Supreme Court granted the victim a compensation award of Rs. 10 lakh. The scope of the right is very broad because it extends to non-citizens as well.

In the Laxmi v. Union of India (2015) case, in 2006, Laxmi, a victim of an acid attack, filed a petition calling for laws to control the sale of acid and to compensate the victim. In 2013, the Supreme Court put strict restrictions on the sale of acid due to the rise in cases involving acid attacks on women. 

The decision made it unlawful to sell acid. Dealers are only permitted to sell acid to customers who have valid identification and can justify the purchase. The dealer is required to notify the police of the sale within three days. Additionally, it prohibited the sale of acid to anyone under the age of 18.

By decriminalising adultery and striking it from the Indian Penal Code in the case of Joseph Shine v. Union of India (2018) , the Court overturned its own decision in the case of Sowmithri Vishnu v. Union of India & Anr (1985) , reasoning that the law was based on gender stereotypes and thus violated Articles 14 and 15 of the Constitution because it only considered the husband of the adulteress who was aggrieved rather than the wife of the adulterer. The Court went on to say that making adultery a crime would be an unjustified invasion of people’s privacy because it would make legalising interpersonal relationships more stringent than they already are.

The Delhi High Court’s decision to commission women into the Army on a permanent basis was recently upheld by a Supreme Court Bench in Defense Secretary v. Babita Puniya and Others (2020) . The Supreme Court ruled that excluding women from command positions based only on their physical characteristics and domestic duties is unreasonable. The Court further declared that women’s complete exclusion is unlawful and in violation of Article 14 of the Constitution.

Transformation from activism to overreach 

Parliament has frequently charged the judiciary with judicial interference. The judiciary is acting outside of its constitutional authority, according to the parliament. Judicial activism that goes beyond all justifiable limits is referred to as “judicial overreach.” Judicial overreach occurs when the courts arbitrarily, excessively, and repeatedly intrude into the domain of the legislature and the executive. 

Although the differences between judicial activism and overreach are subtle, their effects on society are completely different. Contrary to the requirement of judicial activism, the intention of judicial overreach is not genuine. Overreach impedes the functioning of a healthy democracy’s institutions.

According to CJ J S Verma, “Judicial activism is appropriate when it is in the realm of legitimate judicial review. There shouldn’t be any judicial tyranny or ad hocism .”  

In April 2007, in New Delhi, Dr. Manmohan Singh spoke at a conference of Chief Ministers and Chief Justices of the High Court. He said, “ Courts have played a salutary and corrective role in countless instances. Our people hold them in the highest regard for that. In addition, it is difficult to distinguish between judicial activism and overreach .” This statement sparked broader discussions about judicial accountability in India.

The judiciary has no justification for exercising restraint. In the case of Divisional Manager, Aravalli Golf Course v. Chander Hass (2007) , the Supreme Court ruled that judges should not overstep their authority and should not attempt to seize control of the government. Each branch of government, including the legislature, executive, and judiciary, must respect the separation of powers and refrain from meddling in the affairs of the others.

The court emphasised that “judicial activism” should not be mistaken for “judicial adventurism,” noting that “judicial intervention,” “judicial encroachment,” and “judicial activism” are frequently justified by the argument that the legislature and executive are not carrying out their duties properly. The judiciary is no exception to this rule, with cases pending in various courts for more than fifty years. To maintain a healthy balance of power among the three branches of government, the courts should exercise a certain amount of restraint.

Many fundamental constitutional principles are violated by judicial overreach. There is no excuse for it, so it violates the separation of powers. It goes against the law’s supremacy, which is guaranteed by the rule of law. The court, on the other hand, places itself above the law and applies it however it sees fit. Additionally, it strikes against the democratic value of accountability. In a democracy, responsibility is established for all deeds committed, choices made regarding public policy, and executive action or inaction. However, there is simply no accountability of any kind when the court starts to intervene in these areas because courts operate independently of anyone.

Judicial restraint 

The growing number of cases involving judicial overreach sparked a debate about judicial restraint as a preventive measure. Judicial restraint stands in contrast to judicial activism and overreach.

Judicial restraint is a judicial decision-making philosophy in which judges avoid indulging in their personal beliefs about the public good in favour of merely interpreting the law as legislated and according to precedent. The fundamental concept underlying judicial restraint is that the will of the people is best expressed through legislative bodies and that people should bear the consequences of their political choices. Policies are bound to change when the government changes. And with their decision, judges should abstain from establishing new policies. 

To preserve the delicate balance of power among the various branches of democracy, the Supreme Court has repeatedly emphasised the significance of judicial restraint.

In the case of Minor Priyadarshini v. the Director of Elementary (2016) , Justice Markandey Katju stated, “ Under the Constitution, the legislature, the executive, and the judiciary each have their own broad spheres of operation. If any of these three state bodies ventures outside of their respective jurisdictions, the Constitution’s delicate balance will be upset. Therefore, the judiciary must use restraint and repress the desire to act as a super-legislature. It will only increase its own respect and reputation by exercising restraint.”

In the well-known case of S.R. Bommai v. Union of India (1994) , the Court determined that there can be no judicial review when there is a high level of political interest involved and that the judiciary should not get involved. 

In Almitra H. Patel v. Union of India (2000), the Supreme Court rejected giving the Delhi Municipal Corporation instructions on how to clean Delhi, claiming that the matter was outside of its purview and that all it could do was ask the organisation to carry out its legal obligations.

In a number of other cases, the court has upheld the restraint principle and its limited application. In Divisional Manager, Aravali Golf Course v. Chander Haas (2007), the Supreme Court stated that “ judges must know their limits and are not to run the government. Instead of acting like emperors, they must be modest and humble. The Constitution establishes a clear division of power, and each branch of government is obligated to respect the others and refrain from encroaching on their domain.”

The Supreme Court once more emphasised in Government of Andra Pradesh v. P Laxmi Devi (2008) that “i nvalidating a legislative act is a grave step that should never be taken lightly. A court may rule that a statute is unconstitutional not simply because this point of view is possible, but only when it is the only viewpoint that is not subject to the rational question “.

Difference between judicial activism, restraint and overreach

Judicial activism is the term for the judiciary’s proactive role in defending the rights of citizens. Judicial philosophy drives judges to reject established precedents in favour of innovative and progressive social policies.

Judicial restraint is the exact opposite of judicial activism. It is a theory of judicial interpretation that urges judges to restrain their power. As a procedural theory, the idea of restraint urges courts to hold off on making decisions on legal matters, especially constitutional ones, unless the decision is necessary to settle a particular dispute between opposing parties. It encourages courts debating constitutional matters to accord the elected branches considerable credibility and to only reject their acts when they violate the constitution.

Judicial overreach

Judicial overreach is the term used when judicial activism turns into judicial adventurism. This type of activism involves frequent, arbitrary, and unjustified intrusions by the judiciary into legislative affairs. By doing this, the judiciary goes beyond its authority, risks interfering with the legislative or executive branches of government, and goes against the spirit of the separation of powers.

Difference between judicial activism and judicial restraint

Judicial activism and judicial restraint are terms used to describe the use of the power of the judiciary. Some of the differences between judicial activism and judicial restraint are as follows:

• Using the Constitution to promote existing values and conditions is known as judicial activism. Contrastingly, judicial restraint restricts the power of the judge to strike down a law.
• Judicial activism and judicial restraint have different objectives. Judicial restraint aids in the preservation of the balance of power among the three branches of government: the judiciary, the executive, and the legislative. In this case, the judges and the court advocated reviewing an existing law rather than changing it. Judicial activism contributes significantly to the creation of social policies on issues like the protection of individual rights, civil rights, public morality, and political injustice.
• Judicial activism considers changing aspects of society, whereas judicial restraint is not required to consider wider issues.

Difference between judicial activism and judicial overreach

• There is very little difference between judicial activism and overreach. Simply put, judicial overreach happens when judicial activism goes too far and turns into judicial adventurism. The court runs the risk of interfering with the operations of the legislative and executive branches of government when it exceeds its authority.
• Although judicial activism is viewed favourably as a supplement to the executive’s failings, overreaching into the executive’s purview is seen as an intrusion into the democratic process.
• Individual perceptions influence whether an action is considered activist or excessive. 
• The court, on the other hand, has always contended that they must intervene and issue orders due to legislative and executive overreach.

Conclusion 

The scope of judicial activism is so broad that no precise definition exists. The powers for judicial activism or review are derived from the Indian constitution, which empowers them to perform an effective function by asserting themselves. In the Judiciary, protection of the Constitution, rule of law, and constitutionalism are strengthened by judicial activism, which serves as a safety net in the event of a crisis brought on by a different interest group in society. The judiciary oversees the administration of justice and ensures that decisions are made in the public interest and in good faith.

However, courts should exercise caution when implementing the concept. The judges should exercise self-control and limit their interference with other organs. When judges become overly enthusiastic, they tend to cross certain lines, making it difficult to maintain the traditional functioning of the courts. As a result, there must be a distinction between judicial activism and judicial overreach because judicial overreach will destabilise the judiciary. To uphold the nation’s peace, prosperity, law, and order, the government must work more effectively and smoothly. The task of covering up and correcting the wrongdoing and poor judgement of the government cannot be placed as a heavy burden on the judiciary. The skill of judicial activism should be used with extreme caution because it is the height of judicial creativity and a delicate subject. Otherwise, the integrity of the system may be undermined.

Why is judicial activism necessary in India?

The legislature has the authority to enact laws in India, and the judiciary is not permitted to intervene. However, there have been instances when the legislature has failed to pass legislation when it was required. In such cases, the judiciary may use the concept of judicial activism to deliver justice to the people, necessitating activism.

Does activism of the Supreme Court go against the Constitution?

No, the Supreme Court has always followed the Constitution. It has tenaciously performed its main duty of upholding constitutional goals. It is the Court’s constitutionally mandated duty to enforce the law, not just for minor infractions, but for those that have serious consequences for the public at large. In such cases, our constitutional framework does not allow for any criticism of such acts as judicial overreach.

Is the judiciary a despotic branch of the State?

The judiciary is not a despotic branch of the state. Despite expanding the areas in which it can weigh in on issues of public administration and policy, the Indian Supreme Court is well aware of the limitations that must be adhered to. The Supreme Court stated in the case of P. Ramachandran Rao v. the State of Karnataka (2002) that it does not consider itself to be an Imperium in Imperio or would function as a despotic branch of the State.

How does judicial activism strengthen democracy in India? 

Judicial activism gives judges the power to make decisions that support innovative and progressive social policies, which helps social engineering. By upholding constitutional restraints, judicial activism in a contemporary democratic system acts as a check on legislative excess and executive tyranny. Additionally, it contributes to the expansion and protection of individual rights.

References 

• Judicial activism and overreach in India
•   Judicial Activism in India
• The Origin and Current Meanings of Judicial Activismhttps://lawcat.berkeley.edu › record › files › fulltext
• Judicial Activism in India
• The Legislative Aspect of the Judiciary: Judicial Activism and Judicial Restraint
• Judicial activism and public interest litigation in India  
• ‘Judicial activism safeguards rights of the underprivileged’  

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Essay on Judicial Activism – 10 Lines, 100 to 1500 Words

Essay on Judicial Activism: Judicial activism is a controversial topic that has sparked debates among legal scholars, politicians, and citizens alike. In this essay, we will explore the concept of judicial activism, its implications on the legal system, and the arguments for and against this approach. By examining real-life examples and case studies, we will delve into the role of the judiciary in shaping public policy and the balance between judicial interpretation and legislative intent. Join us as we navigate the complexities of judicial activism in this thought-provoking essay.

Table of Contents

Judicial Activism Essay Writing Tips

1. Start by defining judicial activism: Begin your essay by explaining what judicial activism is. Judicial activism refers to when judges interpret the law in a way that goes beyond the text of the law or the Constitution. This can involve making decisions based on personal beliefs or values rather than strictly following legal precedent.

2. Provide examples of judicial activism: Give examples of cases where judicial activism has been evident. This could include landmark Supreme Court cases such as Roe v. Wade or Brown v. Board of Education, where the Court made decisions that had a significant impact on society.

3. Discuss the pros and cons of judicial activism: Explore the arguments for and against judicial activism. Some may argue that it allows judges to protect individual rights and promote social justice, while others may argue that it undermines the democratic process and the separation of powers.

4. Consider the role of the judiciary: Reflect on the role of the judiciary in a democratic society. Judges are meant to interpret the law and ensure that it is applied fairly and consistently. Judicial activism can be seen as either fulfilling this role or overstepping it, depending on one’s perspective.

5. Analyze the impact of judicial activism: Consider how judicial activism has influenced the legal system and society as a whole. Has it led to positive change or caused controversy and backlash? Discuss the implications of judicial activism on the rule of law and the balance of power between the branches of government.

6. Offer your own perspective: Conclude your essay by sharing your own thoughts on judicial activism. Do you believe it is necessary for judges to take an active role in shaping the law, or do you think they should strictly adhere to legal precedent? Explain your reasoning and provide examples to support your argument.

7. Use evidence and citations: Make sure to support your points with evidence and citations from reputable sources. This will strengthen your argument and demonstrate that you have done thorough research on the topic.

8. Proofread and revise: Before submitting your essay, be sure to proofread it carefully for any errors in grammar, spelling, or punctuation. Consider asking a friend or teacher to review your essay as well to provide feedback and suggestions for improvement.

By following these writing tips, you can effectively craft an essay on judicial activism that is well-researched, organized, and persuasive. Good luck!

Essay on Judicial Activism in 10 Lines – Examples

1. Judicial activism refers to when judges interpret the law in a way that advances their own personal or political beliefs. 2. It involves judges making decisions that go beyond the strict interpretation of the law and the Constitution. 3. Critics argue that judicial activism undermines the separation of powers and the principle of checks and balances. 4. Proponents of judicial activism argue that it is necessary to protect individual rights and promote social justice. 5. Some landmark cases that are often cited as examples of judicial activism include Roe v. Wade and Brown v. Board of Education. 6. Judicial activism is often associated with liberal judges who are more likely to interpret the law in a way that expands individual rights. 7. Conservative judges, on the other hand, are more likely to adhere strictly to the text of the law and the original intent of the Constitution. 8. The debate over judicial activism has been ongoing since the founding of the United States and continues to be a contentious issue in legal and political circles. 9. Some argue that judicial activism is necessary in order to adapt the law to changing social norms and values. 10. Ultimately, the question of whether judicial activism is beneficial or harmful depends on one’s perspective on the role of the judiciary in interpreting and applying the law.

Sample Essay on Judicial Activism in 100-180 Words

Judicial activism refers to the tendency of judges to interpret the law in a way that advances their own personal or political beliefs, rather than strictly adhering to the text of the law. This can result in judges making decisions that go beyond their traditional role of interpreting and applying the law, and instead actively shaping public policy.

Proponents of judicial activism argue that it is necessary for judges to adapt the law to changing societal values and needs. They believe that judges have a duty to protect individual rights and promote social justice, even if it means going beyond the literal interpretation of the law.

Critics of judicial activism, on the other hand, argue that it undermines the democratic process by allowing unelected judges to make decisions that should be left to elected representatives. They believe that judges should stick to interpreting the law as written, and leave policy-making to the legislative branch.

In conclusion, judicial activism is a controversial issue that raises important questions about the role of judges in our legal system.

Short Essay on Judicial Activism in 200-500 Words

Judicial activism is a concept that has been a topic of debate in the legal and political spheres for many years. It refers to when judges interpret the law in a way that goes beyond the literal meaning of the text and make decisions that have a significant impact on society. Some argue that judicial activism is necessary to protect individual rights and promote social justice, while others believe that it undermines the democratic process and the separation of powers.

One of the main arguments in favor of judicial activism is that it allows judges to protect individual rights that may not be explicitly stated in the law. For example, in the landmark case of Brown v. Board of Education, the Supreme Court ruled that segregation in public schools was unconstitutional, even though the Fourteenth Amendment did not explicitly address the issue of racial segregation. This decision was seen as a victory for civil rights and helped to advance the cause of racial equality in the United States.

Furthermore, judicial activism can also be used to address social injustices and promote equality. For example, in the case of Obergefell v. Hodges, the Supreme Court ruled that same-sex marriage was a constitutional right, overturning laws in several states that banned same-sex marriage. This decision was seen as a major victory for LGBTQ rights and helped to promote equality for all individuals, regardless of sexual orientation.

On the other hand, critics of judicial activism argue that it undermines the democratic process and the principle of separation of powers. They believe that judges should interpret the law as it is written and leave policymaking to the legislative branch. By making decisions that go beyond the text of the law, judges are seen as overstepping their authority and imposing their own personal beliefs on society.

Additionally, judicial activism can also lead to backlash and political polarization. When judges make decisions that are controversial or unpopular, it can create tension between the judiciary and the other branches of government. This can lead to calls for judicial reform or even attempts to limit the power of the courts, which can have long-term consequences for the rule of law and the protection of individual rights.

In conclusion, judicial activism is a complex and controversial concept that has both benefits and drawbacks. While it can be used to protect individual rights and promote social justice, it can also undermine the democratic process and lead to political polarization. Ultimately, the role of the judiciary in interpreting the law is a delicate balance that must be carefully considered in order to uphold the principles of justice and equality in society.

Essay on Judicial Activism in 1000-1500 Words

Judicial activism is a term that is often used to describe the actions of judges who go beyond their traditional role of interpreting and applying the law, and instead actively shape public policy through their decisions. This controversial practice has been the subject of much debate in legal and political circles, with critics arguing that it undermines the separation of powers and the rule of law, while proponents argue that it is necessary to protect individual rights and promote social justice.

One of the key criticisms of judicial activism is that it undermines the principle of separation of powers, which is a fundamental tenet of democratic governance. The separation of powers is the idea that the legislative, executive, and judicial branches of government should operate independently of each other, with each branch having its own distinct powers and responsibilities. By engaging in judicial activism, judges are seen as overstepping their bounds and encroaching on the powers of the other branches of government.

Critics of judicial activism argue that judges are unelected officials who are not accountable to the people, and therefore should not be making policy decisions that affect the lives of citizens. They argue that judges should stick to interpreting the law as it is written, rather than trying to shape it according to their own personal beliefs or preferences. This is seen as a violation of the principle of democracy, which holds that elected officials should be the ones making decisions on behalf of the people.

Furthermore, critics argue that judicial activism can lead to inconsistent and unpredictable outcomes, as judges may be swayed by their own biases and personal beliefs rather than following established legal principles. This can erode public confidence in the judiciary and undermine the rule of law, which depends on the consistent and impartial application of legal principles.

On the other hand, proponents of judicial activism argue that it is necessary to protect individual rights and promote social justice. They argue that the judiciary has a crucial role to play in safeguarding the rights of minorities and marginalized groups, who may not have a voice in the political process. By interpreting the law in a way that promotes equality and justice, judges can help to correct injustices and ensure that all citizens are treated fairly under the law.

Proponents also argue that judicial activism is necessary to address gaps in the law and respond to changing social conditions. The law is not always clear or comprehensive, and judges may need to interpret it in new ways to address emerging issues or protect new rights. For example, in the United States, the Supreme Court has played a key role in expanding civil rights protections for marginalized groups such as women, racial minorities, and LGBTQ individuals through its decisions on cases such as Brown v. Board of Education, Roe v. Wade, and Obergefell v. Hodges.

In addition, proponents argue that judicial activism can serve as a check on the power of the other branches of government, particularly the executive and legislative branches. By striking down laws that violate the constitution or infringe on individual rights, judges can prevent abuses of power and uphold the rule of law. This is particularly important in countries where the government may be prone to authoritarianism or corruption, as an independent judiciary can serve as a bulwark against abuses of power.

Overall, the debate over judicial activism is complex and multifaceted, with valid arguments on both sides. While critics raise important concerns about the potential dangers of judicial activism, proponents argue that it is a necessary tool to protect individual rights and promote social justice. Ultimately, the balance between judicial activism and judicial restraint is a delicate one, and must be carefully considered in each individual case to ensure that the rule of law and democratic principles are upheld.

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Judicial Activism and the European Court of Justice

This essay will begin by defining Judicial Activism. It will then proceed, through an analysis of the benchmark Dassonville case, to illustrate an example of the European Court of Justice’s judicial activism. Upon doing so, the effectiveness of judicial activism will be evaluated by comparing its effects within the overall aims of the ECJ and the European Union as a whole. From then on, the democratic legitimacy the ECJ’s judicial activism will be questioned; against this, it will be argued that the function of judicial review is a safeguard that grounds the ECJ strictly to the rule of law, even if the process is inefficient and falls short of its intended ideal. Finally, a historical analysis of the development of the political institutions of the EU will show that the ECJ is by necessity an active court, and therefore judicial activism within the ECJ is better justified than in a national member state court.

Related Papers

sharan chandran

Introduction This paper researches the judicial activism applied by European courts. The Court of Justice of the European Union (CJEU) is the institution that comprises the whole judiciary in the European Union 1 (EU). As the judicial figurehead of the CJEU, the impact of the European Court of Justice 2 (ECJ) has gone far beyond the outcome of the particular cases it has resolved. Weiler, respected for his profound and seminal work in the Europanisation process, delineated the role of the ECJ in radically transforming the European legal and political order. 3 Weiler is not alone in his appraisal as the present author asserts that the ECJ must be construed as the most significant judicial body that transformed the institutional structure of the EU and facilitated the European integration project. Naturally, the impact brought by the ECJ prompted the preponderance of scholarships in the latter-end of the 20 th century to examine the issue of judicial activism. Some academics criticised the ECJ for judicial activism by stepping out of the boundaries of its jurisdiction to trigger the piecemeal transformation of Europe. 4 Others counter-argue this notion by contending that the judicial activism scholarship is weak because the ECJ's actions were within the scope of its jurisdiction. 5 This paper advances an alternate argument to both these theories. Firstly, it argues that judicial activism at the ECJ fostered the transformation of the EU institutional structure and integration process. However, the present author contends that it was legitimate for the ECJ to go beyond its jurisdictional limits and that the judicial activism was significant and indeed inevitable. The postulation that the application of judicial activism at the ECJ is legitimate will be corroborated by the theory that the ECJ should not be perceived simply as a court, rather it is an institutional actor that is able to engage in the process of lawmaking for the EU. This research paper would first define the term judicial activism and provide adequate apprehension on the jurisdiction of the ECJ. The practices of the ECJ in the transformation of the EU institutional structure and integrating Europe will subsequently be reviewed to vindicate the existence of judicial activism. The theoretical value of this research is to defend the ECJ against the principal criticisms it had received for judicial activism by contending that the nature of the ECJ's activism was legitimate, parallel to it being an institutional actor.

Judicial Activism at the European Court of Justice

Bruno De Witte

Journal of European Public Policy

Adam Luedtke

Joonas Vättö

This paper is in response to Hix and Høyland and their analysis of the overall theory and current quantitative understanding of the European Union’s judicial politics. In their work, the authors aimed to give a brief theoretical overview of judicial politics, courts, and constitutions, subsequently moving on to a focus on the European judicial system and the European Court of Justice in particular.

Olivier COSTA

From a legal point of view, European integration concerned the citizens at a very early stage. This explains why law specialists have always tended to deny the fact that there would be any democratic deficit in the EU. They underline the various legal ways the Court of Justice can be asked by any member state or private individual to pass a judgment over the legality of acts adopted by the EC, and even to challenge some of the decisions made by its institutions. However, such researchers do not propose much quantitative or qualitative analysis of individual direct litigation. The aim of this article is to go beyond legal reasoning and to assess the concrete possibilities for citizens to go to the Court. The analysis reveals a great asymmetry between the capacity of European citizens to resort to European law and shows that the impact of the ECJ on the democratization of the EU is, at least in that respect, marginal.

Panagiotis J. Dhima

The essay discusses the CJEU (former ECJ) 'judicial activism'.

The European Union legal order was created in the realm of International Law. Some time after, the European Court of Justice qualified it as a “new order of international law” (‘Van Gend & Loos’). Since then the epiphet ‘international’ has disappeared and the ‘new legal order’ has been modeled inspired by a ‘certain idea of Law’ - the State or national legal order. This paper describes briefly some of the pathways followed by the ECJ in its activist action of building a Law.

Cambridge University Press eBooks

Henri de Waele

richard kuper

Examining the major, if controversial, role of the European Court of Justice in the development of the European Union, this text argues that the Court is a highly political body - contrary to the legal formalism which sees the Court&#39;s decisions as the unfolding of pure legal principles. Kuper also argues that the Court has played and is still playing a significant part in the direction and very definition of the European Community. This then raises issues of democratic legitimacy, and the Court&#39;s work is evaluated with reference to issues concerning the distribution of powers and competences among the various bodies of the Community - the Court, Commission, Council, Parliament and Member States.

Fr Dehousse

The European Court of Justice has regularly been accused of activism. Recently, this debate has become more acute thanks to various evolutions (Brexit being only one of them). The charge of activism has no serious basis. However, many academic comments, national judgments and sometimes Advocate Generals’ conclusions reflect a decrease in the quality of the Court’s jurisprudence. This is sometimes confused with activism. It is important to study the causes of this reduced quality and examine the different reforms necessary to correct it. They should allow the European Court of Justice to focus better on its core function in the future.

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Essay on Judicial Activism for Class 10, 12 and Mains Exam

Essay on judicial activism for class 10, 12, mains exam (upsc, psc, ssc).

Judicial activism is a decision making policy wherein the judges use their personal views about the public policy among the existing legislation to mentor their decisions. It first originated in the United States in 1947. The judiciary plays an important role in upholding the dignity and promoting the rights of the citizens. Judicial activism implies the rulings of courts based on the judgement of the judges over any issue. It gives access to the disadvantaged groups who seek relief from the prudence. In India, the judiciary activism originated after the Emergency and hence Public Interest Litigation was used by the courts to reach out to public directly.

Judicial activism methods:

Examples of judicial activism:.

3.) In the Vishakha Case, the court laid down guidelines for protection of women’s rights against sexual harassment.

5.) The Supreme Court granted powers to the Arunachal Pradesh Governor by which the governor and President are unanswerable to the court for the exercise of their powers.

Importance of judicial activism:

Shortcomings of the judicial activism:, conclusion:, leave a reply cancel reply, we have a strong team of experienced teachers who are here to solve all your exam preparation doubts, west bengal board class 4 maths chapter 33 solutions চকোলেট ভাগ করে খাই, up scert solutions class 6 english chapter 3 – the magic show, kerala scert class 8 english solitude question answer, sikkim scert class 4 english chapter 5d let’s explore solution.

Essay on Judicial Activism in India

Students are often asked to write an essay on Judicial Activism in India in their schools and colleges. And if you’re also looking for the same, we have created 100-word, 250-word, and 500-word essays on the topic.

Let’s take a look…

100 Words Essay on Judicial Activism in India

Introduction.

Judicial Activism refers to the proactive role played by the judiciary in promoting justice. In India, it has become a significant part of the legal system.

The term Judicial Activism originated in the United States. In India, it emerged in the late 1970s and has been instrumental in protecting the rights of citizens.

Role in India

In India, Judicial Activism has played a key role in addressing social issues. It has helped in enforcing the rights of the marginalized and ensuring environmental protection.

Judicial Activism in India has been a powerful tool for justice. It is a testament to the judiciary’s commitment to uphold the rights of citizens.

250 Words Essay on Judicial Activism in India

Judicial activism in India refers to the proactive approach of the judiciary in safeguarding the rights of citizens and promoting justice. It is the use of judicial power to articulate and enforce what is beneficial for society at large.

The Emergence of Judicial Activism

The emergence of judicial activism in India can be traced back to the 1970s, a period marked by gross human rights violations during the Emergency. The judiciary, recognising its responsibility, began to interpret laws and constitutional provisions in a manner that enhanced its powers, thereby ensuring the protection of citizens’ rights.

The Role of Public Interest Litigation

Public Interest Litigation (PIL) has been a significant instrument of judicial activism in India. PIL has transformed the judiciary from a passive institution to a proactive one, reaching out to the disadvantaged and marginalised sections of society. It has also enabled the judiciary to take suo-moto cognizance of issues.

Impact and Criticism

Judicial activism has led to landmark judgments that have significantly impacted Indian society and governance. However, it has also faced criticism for overstepping its constitutional mandate, leading to a debate over the separation of powers.

While judicial activism has been a powerful tool for social change in India, it’s crucial to strike a balance between judicial activism and judicial restraint. This ensures that the judiciary does not encroach upon the domains of the legislative and executive branches, preserving the delicate balance of power enshrined in the Constitution.

500 Words Essay on Judicial Activism in India

Introduction to judicial activism in india.

Judicial activism in India refers to the proactive role played by the judiciary in promoting justice, upholding the rule of law, and protecting the rights of citizens. It is a dynamic process that has evolved over time, reflecting the judiciary’s response to societal needs and changing circumstances.

The Genesis of Judicial Activism

Landmark cases signifying judicial activism.

Several landmark judgments signify the rise of judicial activism in India. The case of Kesavananda Bharati vs. State of Kerala (1973) established the doctrine of the ‘basic structure’ of the Constitution, which cannot be altered by the Parliament. This case marked a significant shift towards judicial activism, ensuring the preservation of the fundamental essence of the Constitution.

Another significant case was the Maneka Gandhi vs Union of India (1978), where the Supreme Court expanded the scope of the right to life and personal liberty under Article 21. This case set the precedent for a series of judgments that interpreted Article 21 to include a wide array of rights, reflecting the judiciary’s proactive role.

Critiques of Judicial Activism

While judicial activism has played a crucial role in upholding justice and rights, it has also faced criticism. Critics argue that the judiciary, by overstepping its constitutional mandate, infringes upon the domains of the legislative and executive branches, leading to a distortion of the balance of power. This raises concerns about judicial overreach and the potential for the judiciary to become an unchecked power center.

Conclusion: The Way Forward

Judicial activism in India has undeniably played a vital role in shaping the legal and social landscape. It has been instrumental in upholding constitutional values and promoting social justice. However, it is equally essential to maintain the delicate balance of power among the three branches of government. Striking this balance, while continuing to protect the rights of citizens, is the ongoing challenge and the way forward for judicial activism in India.

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37 Facts About Shakhty

Written by Dorie Leitner

Modified & Updated: 25 Jun 2024

Reviewed by Jessica Corbett

Shakhty, a bustling city nestled in the Rostov Oblast region of Russia, is a hidden gem waiting to be explored. With a rich history dating back to the 18th century, Shakhty has grown from a small mining settlement to a dynamic urban center. This city is bursting with fascinating facts and intriguing features that make it a must-visit destination for travelers and history enthusiasts alike.

From its iconic landmarks and architectural wonders to its vibrant cultural scene and delicious culinary offerings, Shakhty has something to offer everyone. In this article, we will delve into 37 astounding facts about Shakhty, shedding light on its captivating past, present, and exciting future. So, fasten your seatbelts, and let’s embark on a journey to discover the hidden wonders of Shakhty.

Key Takeaways:

• Shakhty, a city in southern Russia, boasts a rich history, vibrant culture, and warm hospitality, making it a popular tourist destination with diverse industries and a strong sense of community.
• With its origins as a mining town, Shakhty has evolved into a bustling city with a well-preserved historical center, diverse cuisine, and a thriving arts and sports culture, offering something for everyone to enjoy.

Shakhty is a city in southern Russia.

Situated in the Rostov Oblast region, Shakhty is known for its rich history and cultural heritage.

The city was founded in 1805.

Shakhty has a long and storied history, with its origins dating back over two centuries.

It was originally a mining town.

The name “Shakhty” actually translates to “mines” in Russian, reflecting its early roots in the mining industry.

Shakhty is located on the Don River.

The Don River , one of the major rivers in Russia, flows through Shakhty, providing beautiful natural scenery.

The city has a population of over 200,000 people.

With a significant population, Shakhty is a bustling city that offers a diverse community and vibrant atmosphere.

Shakhty is known for its traditional Russian architecture.

The city boasts stunning historical buildings and landmarks that showcase the beauty of Russian architectural styles.

It is home to several museums and art galleries.

Art enthusiasts can enjoy visiting museums and galleries in Shakhty that feature local and regional artwork.

Shakhty has a continental climate.

The city experiences hot summers and cold winters, making it the perfect destination for those who enjoy distinct seasons.

The economy of Shakhty is based on various industries.

From mining and metallurgy to agriculture and manufacturing, Shakhty has a diverse economic landscape.

The city is famous for its production of coal.

Shakhty has been a significant producer of coal since its early days as a mining town.

It is a hub for railway transportation.

With its strategic location, Shakhty serves as an important transportation hub, connecting various regions of Russia .

Shakhty has a vibrant cultural scene.

From theaters and music festivals to dance performances and art exhibitions, the city offers a range of cultural activities.

The local cuisine of Shakhty is diverse and flavorful.

Food lovers can indulge in delicious Russian dishes and local specialties that reflect the region’s culinary heritage.

The city is surrounded by picturesque natural landscapes.

From rolling hills to serene lakes and forests, Shakhty offers plenty of opportunities for outdoor activities and exploration.

Shakhty has a strong sports culture.

The city is home to several sports teams and facilities, with soccer and ice hockey being popular among residents.

It has a number of well-regarded educational institutions.

Shakhty is known for its quality education, with prestigious schools and universities offering a wide range of programs.

The city hosts various cultural and music festivals throughout the year.

From traditional folk festivals to modern music events, Shakhty keeps its residents entertained with vibrant celebrations.

Shakhty is a place of historical significance.

The city has witnessed significant events throughout Russian history and played a role in shaping the nation’s identity.

It is a popular tourist destination.

With its rich history, vibrant culture, and natural beauty, Shakhty attracts tourists from all over the world.

Shakhty is known for its warm hospitality.

The locals are friendly and welcoming, making visitors feel right at home in this charming city.

The city has a well-developed infrastructure.

From modern roads and public transportation to healthcare facilities and utilities, Shakhty offers convenience and comfort to its residents.

It has a thriving agricultural sector.

Shakhty’s fertile lands and favorable climate make it ideal for agriculture, with local farmers producing a variety of crops and products.

The city has a rich folklore and traditional customs.

Residents of Shakhty take pride in preserving their cultural heritage through storytelling, music, and dance.

Shakhty is known for its vibrant nightlife.

The city comes alive after dark, with numerous bars, clubs, and entertainment venues for residents and visitors to enjoy.

It has beautiful parks and green spaces.

Shakhty’s well-maintained parks offer a peaceful retreat for nature lovers and a space for outdoor activities.

The city has a strong sense of community.

Residents of Shakhty come together to support various social causes and participate in community events.

Shakhty is a melting pot of different cultures and ethnicities.

The city embraces diversity, with people from various backgrounds coexisting harmoniously.

It has a rich literary history.

Shakhty has produced many talented writers and poets, contributing to the Russian literary scene .

The city is known for its traditional crafts and artisans.

Local craftsmen in Shakhty create intricate and beautiful handmade items, including pottery, woodwork, and textiles.

Shakhty is well-connected with neighboring cities and regions.

With its strategic location, it is easy to explore nearby attractions and destinations from Shakhty.

The city has a strong sense of environmental consciousness.

Shakhty places great importance on sustainability and environmental preservation, promoting eco-friendly practices.

Shakhty has a rich musical heritage.

The city has produced renowned musicians and composers who have contributed to Russian music.

It is a haven for outdoor enthusiasts.

From hiking and camping to fishing and boating, Shakhty offers a wide range of outdoor activities for nature lovers.

The city celebrates various cultural and religious festivals.

Residents of Shakhty come together to commemorate important cultural and religious occasions throughout the year.

It has a well-preserved historical center.

Shakhty’s historic district is filled with charming architecture and landmarks that take visitors back in time.

The city has a growing film industry.

Shakhty has attracted filmmakers with its unique locations and talented crew, contributing to the Russian film scene.

Shakhty is a city filled with opportunities and a bright future.

With its rich history, vibrant culture, and strong community spirit, Shakhty continues to thrive and evolve.

Shakhty is a city that is rich in history, culture, and natural beauty. From its origins as a mining town to its development into a flourishing urban center, Shakhty has come a long way. The city’s industrial heritage, unique landmarks, and vibrant community make it a fascinating destination for travelers and locals alike.

Whether you’re interested in exploring the city’s historic sites, immersing yourself in its cultural events, or simply enjoying the picturesque landscapes, Shakhty has something for everyone. With its welcoming atmosphere and friendly locals, you’re sure to have an unforgettable experience in this charming city.

1. What is the population of Shakhty? The population of Shakhty is approximately XXXX.

2. How did Shakhty get its name? The name Shakhty is derived from the Russian word “shakhta,” which means mine. It reflects the city’s history as a mining town.

3. What are some popular tourist attractions in Shakhty? Some popular tourist attractions in Shakhty include XXXX, XXXX, and XXXX.

4. Are there any annual events or festivals in Shakhty? Yes, Shakhty hosts several annual events and festivals, including XXXX and XXXX. These events showcase the city’s rich cultural heritage and provide entertainment for both locals and visitors.

5. Is Shakhty a safe city to visit? Yes, Shakhty is generally considered a safe city to visit. Like any urban area, it’s always advisable to take general safety precautions and be aware of your surroundings.

6. What is the best time to visit Shakhty? The best time to visit Shakhty is during the summer months from June to August when the weather is warm and pleasant. This is also when many outdoor events and festivals take place.

7. Are there any outdoor recreational activities in Shakhty? Yes, there are various outdoor recreational activities available in Shakhty, including hiking, cycling, and picnicking in the city’s parks and nature reserves.

8. Can I explore the history of mining in Shakhty? Yes, you can explore the history of mining in Shakhty by visiting museums and exhibits dedicated to the city’s mining heritage. These offer insights into the lives of the miners and the importance of the industry to the region.

9. Are there any accommodation options in Shakhty? Yes, Shakhty offers a range of accommodation options, including hotels, guesthouses, and apartments, to suit various budgets and preferences.

10. How can I get to Shakhty? Shakhty is well-connected by road and rail. You can reach the city by car or take a train from major Russian cities. There is also a nearby airport with domestic and international flights.

Shakhty's rich history, vibrant culture, and stunning landscapes make it a fascinating destination. Discover more intriguing facts about cities around the world, from the coal mining heritage of Dhanbad to the captivating stories surrounding Russia's Don River . Explore unique cities and uncover their hidden gems, as you embark on a journey of knowledge and wonder.

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Our commitment to delivering trustworthy and engaging content is at the heart of what we do. Each fact on our site is contributed by real users like you, bringing a wealth of diverse insights and information. To ensure the highest standards of accuracy and reliability, our dedicated editors meticulously review each submission. This process guarantees that the facts we share are not only fascinating but also credible. Trust in our commitment to quality and authenticity as you explore and learn with us.

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A look at James Baldwin’s enduring influence on art and activism

Jeffrey Brown Jeffrey Brown

Lena I. Jackson Lena I. Jackson

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• Copy URL https://www.pbs.org/newshour/show/a-look-at-james-baldwins-enduring-influence-on-art-and-activism

The legendary writer and activist James Baldwin would have turned 100 this month. He is best known for his novels and essays and as a moral voice addressing race, sexuality and the very fabric of American democracy. Jeffrey Brown looks at Baldwin's enduring legacy for our series, Art in Action, exploring the intersection of art and democracy and for our arts and culture coverage, CANVAS.

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Notice: Transcripts are machine and human generated and lightly edited for accuracy. They may contain errors.

Amna Nawaz:

This month, the legendary writer and activist James Baldwin would have turned 100 years old.

Baldwin is best known for his novels and essays and as a moral voice addressing race, sexuality and the very fabric of American democracy. Nearly 40 years after his death, his words are more relevant than ever.

Jeffrey Brown looks at his enduring legacy for our series Art in Action, exploring the intersection of art and democracy, and our ongoing Canvas coverage.

James Baldwin, Writer:

The inequality suffered by the American Negro population of the United States has hindered the American dream.

Jeffrey Brown:

James Baldwin, novelist, essayist, civil rights activist, public intellectual, here debating William F. Buckley Jr. at the University of Cambridge in 1965.

Eddie Glaude Jr., Princeton University:

He's engaged in this ongoing work of self-creation, in this sustained reflection on the power of the American idea. He's bringing the full weight of his intellect to bear on this project.

Eddie Glaude Jr. is a professor of African American studies at Princeton University and author of the 2020 book "Begin Again: James Baldwin's America and Its Urgent Lessons for Our Own."

Eddie Glaude Jr.:

I think, if you read Baldwin closely, there is this underlying idea that we have yet to discover who we are, right, because the ghosts of the past in so many ways, not only blind us, but they have us by the throat.

James Arthur Baldwin was born in Harlem in 1924 and raised there by his mother and stepfather, a Baptist preacher. The oldest of nine children, he excelled in school and served as a junior minister.

A man on the margins, Black and queer, he spent years of his life abroad, much of it in France, beginning at age 24. He wrote novels, including "Go Tell It on the Mountain," an autobiographical book about growing up in Harlem, and "Giovanni's Room" about a tormented love affair between two men living in Paris, and powerful essays exploring race and American identity, including "Notes of a Native Son" and "The Fire Next Time."

He's one of the greatest essayists we have ever produced, the world has ever produced I think, and his subject is us. But his vantage point, it's not that of a victim. His vantage point is from those who've had to bear the burden of America's refusal to look itself squarely in the face.

He was also a playwright and poet, an activist who marched and spoke out for civil rights, including on television, here on "The Dick Cavett Show" in 1969.

James Baldwin:

And the word Negro in this country really is designed, finally, to disguise the fact that one is talking about another man, a man like you, who wants what you want.

And insofar as the American public wants to think there has been progress, they overlook one very simple thing. I don't want to be given anything by you. I just want you to leave me alone, so I can do it myself.

Baldwin died in 1987, but he's remained a powerful cultural presence, one that's only grown in the past decade.

There are days — this is one of them — when you wonder what your role is in this country and what your future is in it.

In the 2016 documentary "I Am Not Your Negro," director Raoul Peck drew from Baldwin's own words. As he told me then:

Raoul Peck, Director:

He was already a classic, and he wrote those things 40, 50 years ago. And watching the film, you think that he would have — he wrote that in the morning, the morning before watching the film, because those words are so accurate, they are so prescient and so impactful, that you can't do it better.

In 2018, Baldwin's 1974 novel "If Beale Street Could Talk" was adapted by Oscar-winning director Barry Jenkins.

Barry Jenkins, Director:

Whether I had won eight Oscars or no Oscars, it's James damn Baldwin, you know? It's James Baldwin. That's pressure enough, in and of itself, because I wanted to honor his legacy in the way that I thought it should be honored.

And now a celebration of the centennial of his birth, including an exhibition at the National Portrait Gallery called This Morning, This Evening, So Soon: James Baldwin and the Voices of Queer Resistance, which takes its name from a short story he published in 1960, another at the Schomburg Center for Research in Black Culture titled Jimmy: Gods Black Revolutionary Mouth, presenting Baldwin's archive of personal papers.

There's a new album by singer-songwriter and bassist Meshell Ndegeocello called No More Water: The Gospel of James Baldwin, and reissues of seminal works with new introductions and artwork.

Cree Myles, Host, "The Baldwin 100": What is the best lesson you have learned being in the spiritual community that you are in with James Baldwin?

Along with a podcast, "The Baldwin 100," in which host Cree Myles talks with contemporary writers and thinkers.

What is his relevance today, especially when you think about younger people, younger readers, younger citizens?

Cree Myles:

Despite the time that has passed, his amount of truth is still relatively radical. When I think about his novels and "Giovanni's Room," and we're thinking about the ways that he grappled with, like, sexuality, those are things were still coming to terms with.

Acclaimed Irish novelist Colm Toibin contributed the new book "On James Baldwin."

Colm Toibin, Author, "On James Baldwin": I'm interested in him as, I suppose, someone who really found ways of dealing with individuality versus community, with being an artist in a difficult time.

But more than anything, more than anything, he wrote well.

Toibin saw connections to his own upbringing and told us how Baldwin has influenced him as writer and man.

Colm Toibin:

It's a question of engaging with this great intelligence and with the sensuous intelligence, with someone sort of thinking brilliantly and glittering sort of way.

But it is also, of course, developing strategies, which he did in relation to his family, in relation to Harlem, in relation to Black America, in relation to exile, in relation to attempting to being an artist in a time of flux, and also in a way of being a gay artist, a homosexual artist coming out of a world which is very conservative and very religious, and attempting also to build strategies around that that give you energy, rather than ones that take you down.

One deeply resonant thread through all the commemorations, Baldwin's focus on the fragility of democracy itself.

Baldwin's exposing the lie that is the source of the suffering, that defines this fragile project, it seems to me. He's committed to democracy. He's committed to America. After all, we are deeply American. But, by virtue of that commitment, he has to relentlessly critique it.

It comes as a great shock to discover the country, which is your birthplace and to which you owe your life and your identity, has not, in its whole system of reality, evolved any place for you.

A commitment, as Glaude puts it, to the complex experiment called America.

For the "PBS News Hour," I'm Jeffrey Brown.

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In his more than 30-year career with the News Hour, Brown has served as co-anchor, studio moderator, and field reporter on a wide range of national and international issues, with work taking him around the country and to many parts of the globe. As arts correspondent he has profiled many of the world's leading writers, musicians, actors and other artists. Among his signature works at the News Hour: a multi-year series, “Culture at Risk,” about threatened cultural heritage in the United States and abroad; the creation of the NewsHour’s online “Art Beat”; and hosting the monthly book club, “Now Read This,” a collaboration with The New York Times.

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• Area around 47° 41' 6" N, 40° 1' 29" E /

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