Judicial Activism and Judicial Restraint?

Question

Can anybody give me reasons as to why someone would support either one of these two theories?

Even if you can give reasons for one side, it is still appreciated.

Answer 1

Judicial Activism: Judge Robert Bork described this in his book THE TEMPTING OF AMERICA. Many judges find the forbidden fruit of legislating from the bench irresistible. Many judges either cannot or will not see the difference between what the law is and what they think it should be.

Judicial Restraint: This means a judge will stop where the law stops and will not force into the text of legislation his/her personal views. IMO this is the way it should be. Let democratically elected legislatures make the law, not judges.

It is typical for those advocating judicial lawmaking to hide behind common law as their justification for their version of judicial activism. See Scalia's book referred to in my sources, pages 3-14. The "common law fig leaf" is so blatantly fallacious it's surprising to see others attempting to shoehorn it into rational debate.

Answer 2

The problem with both of those terms is that they are largely meaningless.

The term "judicial activism" is thrown around by anyone who doesn't like what a judge does. If a judge follows the rules, but the people don't like the rules, the judge is an activist. If the judge follows the rules, but the result is something people don't like, the judge is an activist. But if If the judge does not follow the rules, and the people like the result, then it's fine. Similarly, "judicial restraint" means doing what people like.

The terms are meaningless as they are commonly used, because the label only applies based on whether the person likes what the judge did or not.

If you use any type of objective meaning, a "judicial activist" is a judge who bases their decisions on social policy agendas, and not on the law. The second part is important, because the vast majority of judges out there have some social or personal agenda, and render decisions based on that bias. That's the nature of being human.

It's when the judge ignores the law to enforce their agenda, that's the only time they are truly being "activist".

Also, as a side not, most people outside the legal profession don't seem to realize that it's the job of a judge to make laws. It's called the common law system, and it's been in place since the middle ages. That's not "legislating from the bench". That's creating judicial precedent.

See the essay below for the long version of this answer.