Judicial activism

                The ideology or philosophical outlook taken by each of the nine members of the Supreme Court is of obvious interest to anyone seeking to properly comprehend American politics. There are two dimensions to consider here. The first is the distinction between a liberal and a conservative. According to recent studies, Clarence Thomas is the most consistently conservative judge on the bench closely followed by John Roberts and Antonin Scalia (who passed away in 2016). The most consistently liberal judges are Ruth Ginsburg and Sonia Sotomayor. The ideological leanings of the judge in question might lead to said judge reaching a verdict in keeping with their political outlook on topics such as affirmative action, the Affordable Care Act and abortion. However, one must be careful not to overstate the case. The verdict reached by a judge is constrained by certain limitations; not least the law and the Constitution as it currently stands. For example, conservative judges cannot overturn the Roe judgment simply because they are opposed to abortion.

                The second element to consider is the distinction between judicial activism and judicial restraint. Judicial activism can be defined as a situation in which members of the Supreme Court seek to apply the broad principles of the Constitution towards the modern era. Activism is based on a premise that judges must recognize the circumstances of modern-day society when reaching their verdict. The Constitution was written at a time when women didn't have the vote, slavery was legal and a black man counted as three-fifths of a white man. It is therefore right and proper that the judicial bench acknowledges that society has changed over time (Alexander, 2010). One should note that the term loose constructionist is sometimes used instead of judicial activism.

                As with most aspects of political study, there are certain drawbacks to this approach. Firstly, there is always the danger that judges will impose their own opinions rather than interpret existing legislation/the Constitution in a literal sense. This may well conflate the role of the judiciary and thereby distort the original intentions of the founding fathers. Opponents claim that judicial activism is in reality a one-way path towards judicial overreach. Borne of good intentions, judicial activism gives the judiciary too much power. Unelected and unaccountable figures become politicians (or even dictators) in wigs prone to legislating from the bench.

Before I end this post it is important to recognize that judicial activism can be both liberal and conservative. Perhaps the best example of liberal activism occurred during the Warren Court (1953 to 1969). A number of judgments were made on the basis of de-segregation, abortion, Miranda rights and the death penalty; all of which contributed towards the creation of a more progressive and tolerant society. An example of conservative activism would be if the Court decided to overturn Roe v. Wade (1973). It should also be noted that liberal activism is more common than conservative activism. This is because liberals are more inclined to view the Court as a means to ensure social justice, whereas conservatives are more inclined to view the Court as a bulwark against judicial overreach. The philosophical distinction between positive rights and negative rights casts some valuable insight here. Liberals tend to be supportive of positive rights whereas conservatives are more sympathetic towards negative rights. It should be clear that a judgment that promotes positive rights is more likely to be based upon an activist outlook.