How to Spot Judicial Activism: Three Recent Examples

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Liberals call this correcting errors in the law.
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Since the late 1930s, the courts have gradually abandoned their proper and essential role under the Constitution to police the structural limits on government and neutrally interpret the laws and constitutional provisions without personal bias. Many judges refuse to interpret the Constitution and statutes according to their original public meaning (or perhaps lack the understanding of how to do so).[2] Instead, they seek to impose their personal preferences. But a judge who looks beyond the text of the Constitution “looks inside himself and nowhere else.”[3]

While the Supreme Court of the United States should interpret the laws and constitutional provisions according to their original public meaning, the lower courts—and state courts when dealing with federal constitutional rights—are bound by the precedents of the Supreme Court. To the extent that a case presents an unresolved question, lower courts should likewise give effect to the original public meaning of the text before them.

Although attempts to define “judicial activism” are often criticized as too broad, too partisan, or simply “devoid of content,”[4] a simple working definition is that judicial activism occurs when judges fail to apply the Constitution or laws impartially according to their original public meaning, regardless of the outcome, or do not follow binding precedent of a higher court and instead decide the case based on personal preference. The proper measure is not whether a judge votes to uphold or strike down a statute in any given case. Adhering to an original understanding of the law is the only way to consistently “minimize or eliminate the judge’s biases.”[5] At times, this means that judges must strike down laws that offend the Constitution.

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