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06.03.09

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The Breakdown:

Judicial Activism

By Paul Wagner


Appeals Court Judge Sonia Sotomayor's appearance on the national scene as president Obama's nominee for the Supreme Court of the United States has brought with it, as most recent decades' nominees have, charges of "judicial activism."

That term, which Arthur Schlesinger first came up with in 1947, denotes sitting judges or justices who employ their own or contemporary views in ruling, and end up making, rather than passively interpreting, law or the constitution. Charges of such activism, or "legislating from the bench," have followed every major SCOTUS decision, from Brown v. Board of Education (school integration) to Roe v. Wade (abortion) to Bush v. Gore (the 2000 presidential election). Conservatives usually attach that label, though in the last case liberals have gotten into the act as well.

At least theoretically, the opposite of such activism is "judicial restraint," or stern adherence to written law; in its most hardened form, that's known as "strict constructionism," which claims that only that which is constitutionally spelled out to the letter is a proper province of judicial consideration.

Judicial restrainers haven't had a lot of luck, mostly because the Constitution's Ninth Amendment, which James Madison wrote to discourage exactly that limiting literalism, says that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

In other words, the Constitution itself says that there's more to it than just what's written, and that makes the charge of inappropriate activism difficult to prove.


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