Arguments Against Judicial Activism

Federal courts have recently made headlines when they blocked several of Donald Trump’s executive orders sparking rigorous debate as to what the role of the Judicial Branch is. Much of this debate is centered around whether the judges blocking the orders is judicial activism. The argument for or against judicial activism is always heated around important supreme court cases, but in the end no consensus is reached. In order to take an alternate approach to the argument against judicial activism, I will examine the Citizens United v. Federal Election Commission Supreme Court case which is the center of much of the judicial activism debate, and show the adverse effects that judicial activism can potentially cause. By establishing that …show more content…
A common use of judicial activism is to describe any court decision that one disagrees with or any ruling that strikes down legislation, but these definitions are far too subjective to one’s beliefs, but this definition is far to subjective to be useful. Judicial activism is difficult to define as the court does have the duty of checking other branches of government to ensure that their policy is constitutional, so one cannot just assume judicial activism when a court overturns legislation (Kmiec 1464) which makes it imperative to solidify the definition. Senator Sheldon Whitehouse’s article “Conservative Judicial Activism: The Politicization of the Supreme Court under Chief Justice Roberts” which appeared in the Harvard Law & Policy Review in January of 2015, lays out a framework of what constitutes judicial activism. He argues that a good indicator of judicial activism is a judge discounting their judicial “doctrines” or philosophies when they do not lead them to a conclusion synonymous with their political beliefs (196-7). Whitehouse focuses on conservative judge philosophy as that was the majority in Citizens United and determines the judicial doctrine that the judges claimed to hold which include a preference for originalism, the interpretation of the constitution based on the writer’s intentions, respect for precedent, …show more content…
With each case of judicial activism, the public’s respect for the courts diminishes. Two in three believe that the courts are engaging in political activism, and after Citizens United, nine of ten believe that the courts favor the interest of corporations over citizens (Whitehouse 195). Judicial activism has brought the court further into politics which is more contentious than ever. Since judges are often striking down legislation, politicians are looking out for their own interest rather than the qualifications of the candidate when appointing judges. This results in a competition between the two political parties to try to appoint judges that will represent their own interests rather resulting in “Court packing” (Toobin). When courts are ‘packed’ with a majority political ideology, judges can make decisions that are loosely tied to the actual law and make decisions that benefit their political party. 5-4 decisions are increasingly common as a result of this which represents that rathe rthan coming to a consensus, the courts are ruling along ideological lines depending on which side has a majority at the time (Whitehouse 206). The outrage over Citizens United brought judicial activism into the spotlight, and if it continues, respet for the court is likely to diminish further and the judicial branch will become another political entity. If the courts will not avoid judicial activism or the sake of society, they