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Judicial Activism and Tomorrow’s Courts

11 September 2022


Judicial activism, properly understood, is the use of court power to invalidate legislative or executive acts, or to establish legal rules without legislative or executive initiation. In today’s politically charged environment, one’s attitude toward judicial activism seems to depend on the perceived leanings of the judiciary. When liberals rule the roost, conservatives object to activist judges who discover rights, such as a national right to abortion, that conservatives oppose. But when conservatives dominate, liberals object to activist judges who overturn rights that liberals favor. Bottom line: Judicial activism has become a pejorative term – a camouflage for the substantive aversions of both liberals and conservatives.


Robert A. Levy

William Mellor
Chairman and Founding General Counsel, Institute for Justice