|udca actvsm

wkpeda
descrbes |udca rungs suspected of beng based on persona or
potcaconsderatons rather than on exstng aw. It ssometmes
used as an antonym of |udca restrant.
potca or persona consderaton rather than exstng aws
|1|:1 The denton of |udca actvsm, and whch specc decsons
are actvst, s acontroversa potca ssue, partcuary n the
Unted States. Ths phrase s generay traced back to a comment
by Thomas |eherson, referrng to the "despotc behavour" of
Federast federa |udges, n partcuar,|ohn Marsha.

orgn of terms
Arthur Schesnger |r. ntroduced the term "|udca actvsm" n a
|anuary 1947 Fortune magazne artce tted "The Supreme Court:
1947".

The phrase has been controversa snce tsbegnnng. An artce by
Crag Green, "AnInteectua Hstory of |udca Actvsm," s
hghycrtca of Schesnger's use of the term."Schesnger's orgna
ntroducton of |udcaactvsm was douby burred: not ony dd he
fa to expan what counts as actvsm, he asodecned to say
whether actvsm s good or bad."
debate
Detractors of |udca actvsm charge that tusurps the power of the
eected branches ofgovernment or apponted agences, damagng
the rue of aw and democracy.
|12| Defenders of |udca actvsm say that n many cases t s
aegtmate form of |udca revew, and that the nterpretaton of
the aw must change wthchangng tmes.
A thrd vew s that so-caed "ob|ectve"nterpretaton of the aw
does not exst.Accordng to aw professor Bran Z.
Tamanaha,"Throughout the so-caed formast age, t turnsout,
many promnent |udges and |urstsacknowedged that there were
gaps and uncertantes n the aw and that |udges must sometmes
make choces."
exampes
Brown v. Board of Educaton - 1954 Supreme Court rung orderng
the desegregaton of pubc schoos
1965 Supreme Court rung estabshng a consttutona rght
toposess, dstrbute and use contracepton
1973 Supreme Court rung decrmnazng aborton.
Bush v. Gore - The Unted States Supreme Court case between the
ma|or-party canddates nthe 2000 presdenta eecton, George W.
Bush and A Gore. The |udges voted 5-4 to hat the recount of
baots n Forda and, as a resut, George Bush was eected
Presdent.
010 decson by federa |udge Vaughn R. Waker overturnng
Caforna's consttutona amendment to ban same-sex marrage.|
Presdent Obama has waded nto the ega battesurroundng hs
andmark heath care aw wth astern warnng to the Supreme Court
not tooverturn t. Speccay, Obama argues that theSupreme
Court decdng n such a way woud bean "unprecedented" exampe
of "|udca actvsm" undertaken by "uneected" |udges. The
reevant excerpts of the Presdents speech ,
"Utmatey, I am condent that the Supreme Courtw not take
what woud be an unprecedented,extraordnary step of overturnng
a aw that waspassed by a strong ma|orty of a
democratcayeected Congress."
|udca actvsm shoud not be confused wth thecourts'
Consttutonay mandated rue n enforcng mtatons on
government power and preservng the Consttutona structure
ofgovernment, as they dd n Bush v. Gore, Boy Scouts v. Dae, and
D.C. v. Heer, and as the Supreme Court of the Unted States s
expected to do wth ObamaCare
I' reterate for you that |Obama| has totayncorrecty dened
|udca actvsm. Nobodyever accuses |udges of |udca actvsm
forfoowng the Consttuton. |udca actvsm swhen |udges do not
foow the Consttuton,when they egsate from the bench, when
they wrte ther own aw.