What is Judicial Activism?

The terms "judicial restraint" and "judicial activism" describe how a judge judges, that is, how he applies the law to facts in the cases before him.  The difference is that restrained judges take the law as it is and activist judges make up the law as they go along.

Restrained judges respect the political process, whether they agree with its results or not, until it clearly crosses a clear constitutional line.  Activist judges feel free to re-write statutes or the Constitution, to use extra-legal factors in their decisions, to ignore limits on their power in the search for desirable results.

"Judicial Restraint" is the same as the "judgement" that Alexander Hamilton said should guide judges, while "judicial activism" is the same as the "will" that Hamilton said should not guide judges.   Others have defined it similarly:

Senate Republican Conference Resolution (1997):
Be it resolved, that the Republican Conference opposes judicial activism, whereby life-tenured unaccountable judges exceed their constitutional role of interpreting already enacted, written law, and instead legislate from the bench by imposing their personal preferences or views of what is right or just.   Such activism threatens the basic democratic values on which our Constitution is founded.

Former Senator Sam Ervin:
A judicial activist is a judge who interprets the Constitution to mean what it would have said if he instead of the Founding Fathers had written it. 

Chief Justice Charles Evans Hughes:
The Constitution is what the judges say it is.

Humpty Dumpty:
When I use a word, it means what I choose it to mean -- neither more nor less.

Ed Asner, playing a judge in ABC's The Practice, 9/27/97:
Do you really think I should leave legislative policy to the legislature?

Also, see Tom Jipping's testimony before the Senate Judiciary Subcommittee on the Constitution!

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