judicial activism | Definition

Doc's CJ Glossary by Adam J. McKee
Course: Introduction to Criminal Justice

Judicial activism refers to judicial decisions based on personal political beliefs rather than existing law.

Judicial activism is an approach to legal decision-making. It’s where judges take an active role in policymaking by interpreting the law and the Constitution in broader terms. This often leads to decisions that could potentially shape social or political landscapes. In other words, it’s when judges don’t just apply the law but also use their positions to effect change.

The Origins of Judicial Activism

The term “judicial activism” was first used in 1947. Arthur Schlesinger Jr., a historian, used it in an article for Fortune magazine. The term was used to describe judges who looked beyond the text of the law, interpreting it in light of contemporary issues or personal beliefs.

Judicial Activism in Practice

When we talk about judicial activism, we usually refer to court decisions that go beyond the clear wording of laws or the Constitution. For instance, a judge might read a law that says one thing but interpret it to mean something else, often in line with their own perspectives or beliefs about what’s right. Not only does this shape the application of the law, but it can also affect public policy.

Take an example. The U.S. Supreme Court case Brown v. Board of Education in 1954. The court interpreted the 14th Amendment in a new way to rule that segregated public schools were unconstitutional. This was a form of judicial activism as the decision pushed for social change and went beyond the explicit text of the Constitution.

The Controversy Surrounding Judicial Activism

Like many things, judicial activism has both its proponents and critics. Supporters argue that it’s necessary for societal progress. They believe that judges should consider current social and political realities when making decisions. On the other hand, critics say that it oversteps the bounds of the judiciary. They argue that judges should just interpret the law as it is written, and leave changes to legislators who are elected by the people.

Comparing Judicial Activism with Judicial Restraint

The opposite of this is judicial restraint. This is when judges avoid stepping beyond the clear text of the law or the Constitution. Judges practicing judicial restraint tend to uphold the decisions of elected bodies, such as Congress or state legislatures, unless they clearly violate the Constitution.


All in all, judicial activism is an important concept in our legal system. It involves judges interpreting the law in new and potentially broader ways. This often leads to decisions that can shape social or political landscapes. Whether viewed as a force for positive change or an overstep of judicial power, understanding this helps us better understand the workings of the criminal justice system.

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Last Modified: 06/12/2023


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