NCJ Number
47715
Date Published
1978
Length
6 pages
Annotation
THE PRO'S AND CON'S OF INCREASING INTERVENTION BY JUDGES IN SOCIAL AND POLITICAL MATTERS ONCE HANDLED BY SCHOOL BOARDS, PRISON SUPERINTENDENTS, HOSPITAL ADMINISTRATORS, GOVERNMENT BUREAUCRATS, AND LEGISLATORS ARE WEIGHED.
Abstract
JUDICIAL INTERVENTION IN LEGISLATIVE AND EXECUTIVE AFFAIRS HAS COME TO BE KNOWN AS JUDICIAL ACTIVISM. CRITICS OF JUDICIAL ACTIVISM CLAIM THAT THE JUDICIARY IS INTRUDING INTO THE JURISDICTION OF THE OTHER BRANCHES OF GOVERNMENT IN WAYS THAT ARE AT LEAST IMPROPER AND OFTEN ILLEGAL. JUDGES ARE CHARGED WITH MAKING THE LAW RATHER THAN INTERPRETING IT. CRITICS ALSO POINT OUT THAT JUDGES ARE THE LEAST ACCOUNTABLE TO THE PUBLIC OF ANY BRANCH OF GOVERNMENT AND, THEREFORE, SHOULD NOT BE SETTING PUBLIC POLICY. ON THE OTHER SIDE OF THE CONTROVERSY ARE THOSE WHO VIEW JUDICIAL ACTIVISM AS A NECESSARY MEANS OF OBTAINING JUSTICE OR BRINGING ABOUT DESIRABLE SOCIAL CHANGE. DEFENDERS OF COURT INTERVENTION ARGUE THAT THE COURTS OFTEN ARE THE ONLY AVENUE OPEN TO PEOPLE WHO ARE CUT OFF FROM OR INADEQUATELY REPRESENTED IN THE POLITICAL PROCESS. PROPONENTS OF JUDICIAL ACTIVISM ALSO CITE THE SLOWNESS OR RELUCTANCE OF GOVERNMENT EXECUTIVES AND LEGISLATORS TO RESPOND TO COMPLAINTS OF SOCIAL INJUSTICE. THE BEGINNING OF THE JUDICIAL ACTIVIST TREND ARE TRACED, AND EXAMPLES OF JUDICIAL INTERVENTION IN THE PUBLIC SCHOOLS, IN PRISONS AND HOSPITALS, AND IN MATTERS INVOLVING EMPLOYERS AND THE POLICE ARE CITED. THE QUESTION IS RAISED AS TO WHETHER JUDGES HAVE THE POWER OR THE RIGHT TO ACT AS LEGISLATORS BY BASING LEGAL DECISIONS ON THEIR PERCEPTIONS OF PREVAILING PUBLIC OPINION. FEDERAL, STATE, AND LOCAL BUDGET PROBLEMS THAT HAVE RESULTED FROM RULINGS BY ACTIVIST JUDGES ARE NOTED, AS IS THE LIKELIHOOD THAT THE ACTIVIST TREND WILL CONTINUE. (LKM)