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Judicial Activism: A Way to Overcome it
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Judicial activism in the U.S. occurs when a few Supreme Court judges decide public policy issues, which normally deal with rights. However, it would be better for the people to decide such issues through their elected representatives. This book proposes a way to remove judicial activism, by returning to an original view of the founding fathers that preferred legislative oversight of rights issues.
Author
Duane L. Ostler
Duane L. Ostler was raised in Southern Idaho, and has lived in Australia, Mexico, Brazil, China, Utah, the big Island of Hawaii, and—most foreign of all—New Jersey. He practiced law for over 10 years and has a PhD in legal history. He and his wife have five children and two cats.
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Book preview
Judicial Activism - Duane L. Ostler
Judicial Activism: A Way to Overcome It
Copyright 2015 Duane L. Ostler
All rights reserved. This book may not be reproduced, copied or distributed without the express permission of the author.
Cover art: Our Overworked Supreme Court,
by J. Keppler, 1885, cover of Puck magazine.
TABLE OF CONTENTS
Introduction
James Madison's Views on the Best Way to Protect Rights
A Three Step Method to Restore Legislative Oversight of Rights
Conclusion
Endnotes
Other books by the author
Introduction
The term judicial activism
has become a common part of modern American political speech, though it remains ambiguous and can often mean many different things.[1] The most commonly given meaning for the term applies to judicial decisions that exceed judicial authority on issues that otherwise would be decided by the legislature. This seems to most frequently occur when some aspect of the bill of rights is litigated.
Political leaders in both parties have condemned judicial activism, particularly where it threatens their party's ideology. For example, in 1968 Richard Nixon stated, I want men on the Supreme Court who are strict constructionists, men that interpret the law and don't try to make the law.
[2] In 1986 Ronald Reagan said that America has had too many examples in recent years of courts and judges legislating.
[3] Yet Democratic leaders can feel just as much concern for judicial activism as their Republican counterparts. Barack Obama expressed fear in 2012 that a conservative Supreme Court might disagree with the new healthcare law:
"I'd just remind conservative commentators that, for years, what we have heard is, the biggest problem on the bench was judicial activism ... that an unelected group of people would somehow overturn a duly constituted and passed law. Well ... I'm
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