The notion of judicial activism.


William Brafford

William Brafford grew up in North Carolina, home of the world's best barbecue, indie rock, and regional soft drinks. He just barely sustains a personal blog and "tweets" every now and then under the name @williamrandolph.

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4 Responses

  1. Avatar Dave says:

    But if you’re going to claim the ruling is undeniably good, I want to see some reference to how the decision was reached.


  2. Avatar Jaybird says:

    One thing that has always troubled me is the viewpoint of the Dred Scott decision as seen today. We can all look back and say “of course this started a civil war!” (and followed by “what cowardice!” and other bad things about the judges) but let’s look at precedent, stare decisis, etc… and ask whether there was any established reason for the Supreme Court to say “nope, we’ve read the Constitution and came to the conclusion that we need to change what we’ve been doing for the last hundred or so years.”

    They kicked the can down the road. They followed precedent and didn’t rock the boat. They refused to be “activist judges”.

    Fast forward. Not quite to Loving v. Virginia, but to the State Supreme Court trial that preceded it. Leon Bazile talked about God’s decrees and how God segregated the races and so on (yes, in the “dicta”, not that that impacts the point disproportionately). Bazile was using established State Law and the State Constitution and came to the conclusion that the State had the right to recognize *THIS* marriage but not *THAT* one… moreover, had the right to tell the couple to live somewhere else if they wanted to claim to be “married”. He had precedent on his side and I’m pretty dang sure that he represented the majority of the folks in the state at the time of his appointment (and, sad to say, perhaps even by the time of this ruling).

    I considered making similar paragraphs about Griswold v. Connecticut or Lawrence v. Texas. I don’t think I need to, though. They follow the same theme as above.

    Looking back, we can totally say that a lower court should have been activist and it was downright wicked for the court to *NOT* buck precedent. We don’t see “judicial activism” but “a court acting as a check and balance against the other two branches as the Fathers intended”.

    I am not, of course, a fan of stare decisis. Who is?

    Are there systems where stare decisis is not used, though? Are those systems measurably better?

    I wonder if the problems from a system with too much reliance on precedent might not be more manageable than the problems from a system with not enough.Report

  3. Avatar William Brafford says:


    I’m trying to say that an ideal decision reaches the best outcome by the right process while leaving open the possibility that the right process might sometimes preclude justice. And I’m thinking it comes down to trade-offs. A long time ago I read a book about the ninth circuit federal courts during the civil rights era. If I’m remembering it right, the district courts would sometimes fudge with the tacit approval of some judges on the appellate court in order to help the civil rights movement. If I’m not totally wrong on the details, this situation fits my take on activism, but I think it was definitely worth it. I’d like prize process unless circumstances are extreme.

    I don’t really know enough about the history of constitutional law to go much further with this, though. Thanks for the comment.