Business Law 101 / Judicial Activism

Business Law 101 / Judicial Activism

By Albert L Kelley, Esq.

I generally try to keep politics out of this column, however sometimes politics presents issues that need to be explained. During the last few months, there have been many statements made about “activist judges”. The statements generally arise when a judge strikes down or challenges a law passed by Congress or an executive order of the President. What is an “activist judge”? Surprisingly, there really isn’t a true definition. As used by some, the phrase judicial activism refers to a judge who lets their personal beliefs and political ambition dictate their rulings. However, in two separate law dictionaries, judicial activism is defined as a theory where decisions are based not on precedent, but on the public welfare, or what is fair and just based on the facts of a particular case.

This is not a new issue. The phrase “judicial activism” has only been around since the 1940s, although, it really has its foundations in some of the earliest cases before the United States Supreme Court. The Supreme Court first met in 1790. Just three years later, under Chief Justice John Jay, the court ruled In Chisholm v. Georgia that federal courts could determine lawsuits between citizens against the various states (Georgia had ruled that sovereign immunity prevented them from being sued). This was probably the first case of judicial activism, in that the Supreme Court was overruling an existing state ruling. Ten years later, the court, under Chief Justice John Marshall, took the strongest step towards judicial activism. In the case of Marbury v. Madison, the Supreme Court determined that they had the power to overturn a law passed by Congress if that law violated the Constitution. This essentially gave the courts the power of judicial review, which to this day is one of the central themes of our court system. The case essentially ruled that the Courts should be active; not passive.

Judicial activism is used today as a derogatory term, usually by the losing side of a decision. Yet, judicial activism is responsible for some of our most important court decisions. In Brown v. Board of Education, the Supreme Court declared segregation in public schools to be unconstitutional. In Gideon v. Wainwright, the court held that states must provide attorneys for indigent criminal defendants. And in the United States v. Nixon, the court held that no one, including the President of the United States, was above the law.

The court is not and should not be subservient to Congress or the President. Our Constitution and our system of government allows for three equal and separate branches of government: the legislature, the executive, the judiciary. Each branch must act independent of the other branches which allows for the series of checks and balances our country was founded upon. By its very nature, the judiciary must be an activist judiciary. To be otherwise would make them less than equal, and turn the court into nothing more than an advisory board for the other branches of government, rubber stamping anything Congress or the President want.

Whether we agree with their decisions or not, the courts are often the last protector of the rights and freedoms given to us by the Constitution. This is a position we should cherish, not denigrate.

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University. He is also the author of “Basics of Business Law” “Basics of Florida’s Small Claims Court” and “Basics of Florida’s Landlord-Tenant Law” (Absolutely Amazing e-Books). This article is being offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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