NCJ Number
56901
Date Published
1977
Length
58 pages
Annotation
AN EXAMINATION OF THE NATURE AND FUNCTIONS OF JUDICIAL ACTIVISM WITHIN U.S. CONSTITUTIONAL LAW IS PROVIDED IN THIS BOOK. RESULTS OF A SURVEY OF THE ACADEMIC COMMUNITY'S PERCEPTION OF THIS CONCEPT IS INCLUDED.
Abstract
THERE IS NO PHILOSOPHY OF JUDICIAL ACTIVISM PRACTICED BY JUSTICES OF THE SUPREME COURT, SINCE THEY HAVE NOT VENTURED OUTSIDE THE POWERS OF ITS ORIGINAL JURISDICTION. THAT THE COURT DOES ENGAGE IN ESTABLISHING GROUNDBREAKING PRECEDENTS CAN VIEWED AS AN EXERCISE OF ITS POWER OF ORIGINAL JURISDICTION. IT IS MISTAKEN TO CONFUSE THESE ACTIONS WITH 'JUDICIAL LEGISLATION.' SUCH A COMMONLY HELD MISTAKEN NOTION ARISES DUE TO MISUNDERSTANDING THE SIGNIFICANCE OF CERTAIN COURT FUNCTIONS AND THE JUDICIAL PROCESS. SUPREME COURT FUNCTIONS, WHICH HAVE GIVEN RISE TO THE MISTAKEN NOTION OF JUDICIAL ACTIVISM, INCLUDE THE 'RULE OF FOUR': 5 TO 4 COURT DECISIONS AND THEIR IMPACT ON THE COURT'S IMAGE; THE CONCEPT OF CERTIORARI; AND JUDICIAL RESTRAINT. FOR EXAMPLE, IN 1925 CONGRESS GRANTED THE COURT THE POWER TO GRANT CERTIORARI IN CASES WHICH CAME BEFORE IT. PRIOR TO THAT TIME, THE COURT HAD NO 'DISCRETION' OVER DETERMINING WHAT CASES IT WOULD HEAR. THE SURVEY OF 15 PROFESSORS AND 108 UNDERGRADUATE AND GRADUATE STUDENTS AT FIVE WASHINGTON, D.C. UNIVERSITIES REVEALED THAT MOST OF THE PROFESSORS AND STUDENTS OF POLITICAL SCIENCE BELIEVED THE COURT TO BE ENGAGING IN JUDICIAL LEGISLATION. THIS MAY INDICATE A WIDE-SPREAD CONFUSION ABOUT THE FUNCTION OF THE SUPREME COURT. CHARTS, TABLES, AND REFERENCES ARE INCLUDED. (KCP)