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What Is Judicial Activism? More Importantly: How Do You Prove It?

There are multiple definitions of judicial activism.  I think we can all agree that James Madison's definition is pretty close: It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature.... The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.Federalist No. 78.  A court is activist when it ignores the law, and thus imposes its will rather than exercises its judgment.  Here, to me, is a much more interesting issue: How do you prove it?  How do you prove that a judge didn't just get the law wrong?  Instead of, say, ignoring the law to reach an outcome contrary to the law...continue to full post

Full post as published by Crime & Federalism on September 11, 2008 (boomark / email).