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DEFINITION Dictionary definitions ''Merriam-Webster's Dictionary of Law'' defines judicial activism as "the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent." {Link without Title} '' Black's Law Dictionary '' defines judicial activism as "a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usu. with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent." David Strauss of the University of Chicago Law School has argued that judicial activism can be narrowly defined as one or more of three possible things: {Link without Title}
Critics of Strauss' view have argued that these definitions include only legal interpretation. They argue that a judge may be termed "activist" based on the remedy chosen, even if the legal interpretation is not "activist". In practice, a speaker may use the term "activist judge" to mean that a judge has simply made an important decision that the accusing speaker disagrees with. When used in this way, the term "activist judge" is little more than a term of political criticism. While there are many who are willing to use this hot button term as a simple protest of disagreement, this is not the most common usage, nor the most common understanding, of the term. As a general usage, "activist judge" is used to describe a judge who actively and knowingly subverts, misuses, grossly misinterprets, ignores, or otherwise flaunts the law and or legal precedence due to personal opinion, be that opinion ideological, religious, philosophical, or other. DEBATE Detractors of judicial activism charge that it usurps power of the Legislature , thereby diminishing the rule of law and democracy. They argue that an unelected judicial branch has no legitimate grounds to overrule policy choices of duly elected representatives, absent a real conflict with the constitution. Defenders of judicial prerogatives say that many cases of "judicial activism" merely exemplify Judicial Review , and that courts must uphold the constitution and strike down any statute that violates the constitution. They say that it is the duty of courts to protect minority rights and to uphold the law, notwithstanding the political sentiments of the day, and that constitutional democracy is far more than just majority rule. However, detractors of judicial activism retort that neither democracy nor the rule of law can exist when the law is merely what judges say it should be. They argue that the discretion of judges must be limited (e.g. by the intentions of lawmakers), or else any group of people engaged in any behavior could become a judicially protected minority, and any law could be subverted by the predilections of unelected judges. Some proponents of a stronger judiciary argue that the judiciary should grant itself an expanded role to counterbalance the effects of 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 any particular minority through its elective powers. For information about judicial activism in Canada, please see Judicial Activism (Canada) . ORIGINS Arthur Schlesinger Jr. introduced the term "judicial activism" to the public in a Fortune magazine article in January 1947.Keenan Kmiec in a 2004 California Law Review article Keenan Kmiec discusses Schlesinger's article "The Supreme Court: 1947" from ''Fortune'', January 1947. According to Kmiec,
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