Judicial Activism

Judicial Activism: What does the Constitution Really Mean? (2010)

Notes by Sally Hollemon

Kasia Quillinan read a Proclamation from Salem Mayor Janet Taylor proclaiming September 16 as Constitution Day in Salem. Kasia then introduced Professor Ross Runkel and was moderator of the program.

Prof. Ross Runkel gave a lively and informative talk on Judicial Activism–What Does the Constitution Really Mean?

The term judicial activism has been around for decades. The term is used when the Supreme Court

• Overturns a precedent (an earlier decision) by the Court or
• Overturns a statute for not being consistent with the Constitution.

He cited specific court cases to illustrate.

The Constitution has many general words and phrases. The Supreme Court decides what is meant by equal protection or unreasonable search and seizure. (What is a reasonable search?)

Two views: Individual Supreme Court justices have one of two views of the Constitution, and these are in conflict.

Originalists believe the words in the Constitution mean what they meant in 1787 when the Constitution was written. These justices have old dictionaries in which to look up word meanings and histories of the nation’s founders to determine what they thought.

The other group believes the Constitution is a “living document” and that current understandings and beliefs must be taken into account in deciding what the Constitution means now.

Conflicting values: Are judges using their personal values or legal values when they decide a case? Using personal values would be real judicial activism.

Overruling precedent: We want predictability in the law. However, justices make mistakes. Subsequent experience shows that a decision was wrong, so, when a similar case reaches the Supreme Court, the justices can overturn the Court’s previous decision.

Overturning statutes: People find it frustrating when the Court finds a statute to be unconstitutional. After all, the majority is supposed to rule. How can nine unelected justices overturn a democratic decision? Writings by James Madison (a founding father) and by John Marshall (an early Chief Justice) said that the Supreme Court should interpret the Constitution.

Judicial activism: People who don’t like a particular decision will call it judicial activism. People who agree with that decision will think it’s a good one.

Professor Runkel illustrated his points with specific court cases, most of them relatively recent.