Judicial Activism and The Defense of Civil Rights

Since its first appearance in 1947 in Fortune Magazine, the term Judicial Activism has promoted incandescent debates about the rule of courts in public policy, however to date there is not a consensus of what judicial activism really means. The term may denote a pejorative description of judicial behavior or in other instances the sophisticated elaboration of judicial concepts. (Roosevelt III 2006:1)

Since 1947 the term have been used extensively in magazines, newspapers and law reviews, by 1990 was used in average 450 times a year, appeared in 3815 law review articles and several other publications (Kmiec, 2004). After the election of president Obama the term use of the term have been even more extensive, his two Supreme Court nominees have been labeled with the scarlet letter of activism by respected law gazettes like American Bar Association (ABA) journal and the Northwestern University Law Review. Yet the debate about the meaning of the term remains unclear.

However the involvement of the courts in policy making is not a recent phenomenon as some media outlets aim to portrait. Since the first use of judicial review by the Supreme Court in Marbuty v Madison (1803) the Supreme Court have exercised judicial review to overthrow 160 federal status and more than a 1000 federal laws (Tarr 2009, p258). Some of the most these cases have important legal implication in the defense of fundamental rights such as freedom of speech, (United States vs Nixon 1973), due process (Brown vs Board of Education 1954) and prisoner’s rights (James v Wallace 1974).

Courts are also involved in the defense of civil rights contesting majority ruled decision. Gamble (1997) illustrated this case clearly in her study of court’s rule against referendum mandates affecting minority rights. Gamble stated that between 1959 and 1993 there were 74 ballot measures that clearly targeted minority rights; most of these ballot initiatives deal with issues such as housing segregation, gay rights, school desegregation, English among others.

From the 74 measures mentioned by Gambel, 53 (78 percent) generated a form of repression of exclusion against minority groups. Analyzing this results Gamble argued that “the record show[ed] that American voters readily repeal existing civil rights protections and enthusiastically enact laws that bar their elected representatives from passing new ones. By repeatedly striking down the latter, the judicial system has vigilantly protected the rights of minorities to participate in the political process” (Gambel 1997:262)

Judges have been involved in policy making, not just protecting of civil rights, but in filling the gaps overlooked by the law.