Talk:Judicial activism

message: The question of what is and is not judicial activism is a bone of contention that has to be addressed.  Our Founding Fathers and their English predecessors had a fairly precise concept of what it was and was not, which is reflected in the Definitions page.  Obergefell was a hotly-contested case which highlights the difference between an activist decision and one where your (not in a personal sense, but to the speaker claiming judicial activism) preferred interpretation of the Constitution was not followed.  Showing this, with appropriate references to recognized experts, adds meat to the proverbial bones.
One of the problems I am running into is that my computer keeps crashing, and what you are seeing is a work-in-progress.  Sitting judges have said so much on this topic that, except where I have paraphrased them for sake of brevity, not a single word is my own. I don't have a dog in the Roe or Obergefell hunts, but being able to present a clear working definition of judicial activism for the public at large is of great concern to me.  I have expert-level knowledge of the topic, but have a lot to learn about how best to write for this forum.  Help me out with this end of the project, and we will all benefit.
As for this comment: ("A third is where judges take liberties with the law, facts, and/or precedent, which—while remarkably commonplace—is never construed as permissible."), the evidence reads like a Brandeis brief.
Objectively speaking, Roe v. Wade is not an activist decision, for the reasons stated.  Perhaps the best solution is to remove it from the list of activist decisions.  (I have to remember to sign these things!)
 — Preceding unsigned comment added by Bouldergeist (talk Bouldergeist (talk) 19:23, 12 August 2015 (UTC)
thread_title:  Response to Dustin 

message: I'm working at polishing the Judicial Activism page. If I'm doing it right, the entry should be encyclopedic (comprehensive) and informative.  And as I like to say wrt my legal briefs, "if I've done it right, not a single word is my own."  What the Framers thought is often best expressed in their own words (as they really were quite erudite), and James Madison and Alexander Hamilton are as much experts on constitutional design as any modern scholars are.  Once everyone is more-or-less happy with the entry itself, the hard work of cleaning up the endnotes (providing links where available, as documenting phrases from snippets in Google Books can be problematic) and curing disambiguation issues begins.
I've never really thought of quoting sources like Blackstone and Locke as "original research," as Blackstone was more of an authority than an Alan Dershowitz will ever be.  Blackstone was cited over 10,000 times in reported colonial cases, and the United States Reports are replete with citations to The Federalist.  You won't see a lot of scholarly work on the debate over judicial activism during the 18th century because there really wasn't one, but an understanding of the American Framers' view of the proper role of the judiciary is essential to grasping what the modern debate is all about.  
As for my personal biases on the topic, I am a Scalian originalist, who maintains that the Constitution is a contract (more specifically, a suzerainty agreement), and must be interpreted as though it was a contract.  Scalia is an expert in his own right, and like Holmes and Story, can be cited as one.  If I am hard on Scalia, it is to compensate for this known bias.
An encyclopedia entry should be as neutral as possible, and I can only do so much in trying to be aware of and compensate for my own biases.  I am counting on editors and readers to help me in that regard. I not only invite you but beseech you to hold me to the highest of standards.   
Work with me, and I'll do my best to make this an A-class entry.  As it stood, the old version was next to useless.Bouldergeist (talk) 13:16, 19 August 2015 (UTC)
thread_title:  Message from Bouldergeist 

message: I have tried to save as much of what has been contributed by others as possible, working it into the body of the revised entry (at least in concept).  While I know this topic cold, a decent respect for the insights of others is what makes Wikipedia valuable. 
One of the statements that motivated me to take this task on was the odd remark that "Some proponents of a stronger judiciary argue that the judiciary helps provide checks and balances and should grant itself an expanded role to counterbalance the effects of transient majoritarianism."  That statement -- if not necessarily the sentiment -- was so wrong on so many levels that it is hard to even contemplate.  One is left to wonder where the judiciary could ever find authority to grant itself powers in the United States Constitution, and the conclusion is inconsistent with my reading of the cited portion of Democracy and Distrust.   The (in?)famous Footnote Four in Carolene Products reflects the view that, in cases where government action does not infringe upon protected individual rights, judicial deference to Congressional decisions should be almost plenary, but where it does, and where a majority may use its power to impose its will on discrete and insular minorities, judicial inquiry should be "more searching."  Professor John Hart Ely's analysis reflects this concept, and more importantly, that the Court does not have to grant itself that role, as that power already exists.  Ely cites Federalist 51 for this point [p. 80], in demonstration of this point.  For that reason, I have removed it from the current edition, but saved it here for easy access, as Ely's signature work (which, in general, doesn't appear that amenable to it) deserves mention in consideration of the modern debate over activism:
Some proponents of a stronger judiciary argue that the judiciary helps provide checks and balances and should grant itself an expanded role to counterbalance the effects of transient majoritarianism, i.e., there should be an increase in the powers of a branch of government which is not directly subject to the electorate, so that the majority cannot dominate or oppress any particular minority through its elective powers.John Hart Ely, Democracy and Distrust. Cambridge: Harvard University Press, 1980, chapters 4–6.  Other scholars have proposed that judicial activism is most appropriate when it restrains the tendency of democratic majorities to act out of passion and prejudice rather than after reasoned deliberation.Evan Zoldan, "Targeted Judicial Activism," 16 Green Bag 2d 465-66 (2014) 
I also went hunting for ways to expand and document Professor Zoldan's observation.  My thought is that, in the light of Professor Sherry's observations, his are cumulative, and belong in a parallel cite.
I was unable to verify the Tamahana quote,https://books.google.com/books?id=1Bbl-0GG5TUC&printsec=frontcover&dq=Beyond+the+Formalist-Realist+Divide:+The+Role+of+Politics+in+Judging&hl=en&sa=X&ved=0CCYQ6AEwAGoVChMI7sSpqba1xwIVk4uSCh0QmQjg#v=snippet&q=%22gaps%20and%20uncertainties%22&f=false but the professor's work added value to the discussion.  I point-cited to what I thought was directly on-point.  
The last paragraph was completely unsupported by citation:
Moreover, they argue that the judiciary strikes down both elected and unelected official action, in some instances acts of legislative bodies reflecting the view the transient majority may have had at the moment of passage and not necessarily the view the same legislative body may have at the time the legislation is struck down. Also, the judges that are appointed are usually appointed by previously elected executive officials so that their philosophy should reflect that of those who nominated them, that an independent judiciary is a great asset to civil society since special interests are unable to dictate their version of constitutional interpretation with threat of stopping political donations.
These statements may have intrinsic merit, but without appropriate scholarly support, they probably don't belong in the article.  I have saved the paragraph in question for easy access, and will go hunting for the proper level of scholarly support.
As for the United States entry, a quick paragraph appraising the allegedly activist decisions in light of the Tushnet/Marshall standards is in order, and I will attend to that task shortly. As the more immediate issue is cleaning up instances of disambiguation and providing links to source material, that will take precedence for now.  Again, I welcome any input from readers and moderators.  Bouldergeist (talk) 16:33, 19 August 2015 (UTC)
thread_title:  What's Left and What To Do About It 

message: # The willingness of the judiciary to overturn acts of a legislator or previous judicial decisions that are unconstitutional. (opposite of judicial restraint)
# The various forms of judicial interpretation that go beyond the text or meaning of the law (originalism) and consider things such as what the judge believes the intent of the law was; or to balance the law against other considerations such as governmental interests or popular opinion.
# The willingness of justices to make broad decisions that cover fundamental principles, rather than narrowly construed decisions that limit the effects of precedent only to those necessary to settle the case before them.
# The introduction of personal, emotional or political bias into decisions.
The current revision of the article's lede only discusses the last meaning of the term. The body of the article touches on some of the other meanings, but doesn't elaborate. Sparkie82 (t•c)  07:37, 9 December 2016 (UTC)
replies: text: I tend to agree that a better-rounded definition is in order. For example, judicial activism can refer to a willingness to overturn precedent even when that precedent was uncontroversially incorrect. However, I don't think that we should include #2, because originalism is not the consensus baseline of responsible jurisprudence. Lukacris (talk) 21:47, 14 January 2018 (UTC)
thread_title:  (At least) four different meanings to the term "Judicial activism" 

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thread_title:  External links modified 

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thread_title:  External links modified 

message: Currently, "judicial fiat" redirects to this article. This seems, to me, incorrect. Judicial activism is a far broader term and judicial fiat is a narrower form of judicial policymaking that is not necessarily judicial activism and can be distinctively passive. Lukacris (talk) 21:44, 14 January 2018 (UTC)
thread_title:  Redirect from "Judicial Fiat"? 

message: Am not familiar with Judicial activism in the UK but would like more evidence that scholars agree it's established. I also read article like like this which question whether it's on the rise altogether. ~ Shushugah (talk) 14:33, 23 January 2021 (UTC)
thread_title:  UK and Judicial Activism in doubt 

message: Prior content in this article duplicated one or more previously published sources. The material was copied from: https://fedsoc.org/commentary/publications/hot-topics-judicial-activism https://www.washingtonpost.com/archive/politics/1994/06/10/retired-justice-changes-stand-on-death-penalty/9ccde42b-9de5-46bc-a32a-613ae29d55f3/ https://www.newyorker.com/magazine/2010/05/24/activism-v-restraint https://www.theguardian.com/world/2012/apr/02/barack-obama-unelected-supreme-court?newsfeed=true https://www.abajournal.com/news/article/aba_president_says_obamas_initial_remarks_on_judicial_activism_are_troublin https://www.nesl.edu/blog/detail/a-true-legal-horror-story-the-Laws-leading-to-the-salem-witch-trials. Copied or closely paraphrased material has been rewritten or removed and must not be restored, unless it is duly released under a compatible license. (For more information, please see "using copyrighted works from others" if you are not the copyright holder of this material, or "donating copyrighted materials" if you are.)
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thread_title:  Copyright problem removed 

message: The template at the top of this article currently mentions "deal primarily with the United States and do not represent a worldwide view of the subject."
Below that it mentions: "See also: Judicial activism in the European Union, Judicial activism in Canada", and there is also the equally short and source-starved Judicial Activism in India
I suppose it would be best to merge those three articles into this one to resolve problems of all four articles (the lack of a worldwide view of this one, and the lack of content and sourcing which would justify separate articles for the last ones).
I thus propose merging all 3 into this one. 
 I am suggesting a merge of the Judicial activism in India article which you have made contributions to Xavdeman (talk) 18:18, 2 July 2022 (UTC)
replies: text: Yeah merging the India page probably makes sense. There's not much there to begin with, and it has quite a bit of extra information, which is out of date - for example, the tenure of the current Chief justice of India.  Shashwat312 (talk) 20:47, 2 July 2022 (UTC)
replies: text: I confess I have no strong opinion on this. My involvement with the India article was merely a tidying up, grammar and punctuation exercise, though I noted then that the article does not really cover the title. The only relevant phrase is "the judiciary has played a very active role in dispensing justice" which, it seems to me, is a truism that applies to the judiciary in every country and has nothing to do with "judicial activism". As such the article is probably a candidate for deletion rather than merging. Emeraude (talk) 08:45, 3 July 2022 (UTC)

text: * Joyous! Noise! 03:26, 14 March 2023 (UTC)
thread_title:  Merger proposal of: Judicial activism in the European Union, Canada and India, into this article