Image via WikipediaJudicial activism is currently defined as a judge using his or her position to affect/change law, instead of defining/interpreting law.
A judge's role is often to clarify law, like when multiple laws come together which one has precedence, would a law apply to a new situation previously unintended or never before existed, and so on. For example, on many constitutional issues, some local laws are claimed to interfere with such rights as Bill of Rights and so on, by one side, and the government on the other side, claiming the laws are perfectly fine as written.
A while back, several California Supreme Court judges declared that the California constitution, which protects against discrimination against various things, including sexual orientation, trumps over any local law or even state assembly laws that blockss "gay marriage", despite the previous State Assembly passage of "In Defense of Marriage Act". They are accused of "judicial activism", as religious right accused them of "imposing their minority view on the majority of Californians".
More recently, Supreme Court
So what's the point? I believe there's a fundamental logic problem with the critics who accuse ANYONE of judicial activism.
If judges are to interpret law as written, irrespective of public opinion, then if they do pass a decision that is unpopular, they will be lambasted as "judicial activists who are forcing their will on the public", correct?
But the whole idea of a judicial activist is someone who used his/her opinion, instead of law as written, to interpret the law, isn't it?
So what are the critics saying? That it's okay for the judge to use PUBLIC OPINION to interpret the law, but not his or her own opinion?
Even though a judge is ONLY supposed to use the law exactly as written, and perhaps, a bit of background information to guess at the circumstances and the original INTENT of the lawmakers who passed those laws, correct?
So what are the critics really saying? That any judge that makes judgments against public opinion is a judicial activist?
I always thought "activists" are those who are trying to make a difference (I make no judgment on the worthiness of their cause). It seems that only among POLITICIANS that activist is a NEGATIVE word.
So the politicians are against judicial activists (who are best defined as judges who buck public opinion, according to above). Which would make sense, since politicians fight for public opinion.
But what about the rest of us? Perhaps we should just embrace judicial activists BECAUSE the politicians hate them.
Until they rule against your subgroup, of course.