Nowadays judicial activism is a popular term. However, its exact meaning remains unclear for scholars and for general public. In general judicial activism can be understood as a practice by judges to outlaw policy options for governmental officials when there is no clear prohibition of such options (Kmiec, 2004). Judicial activism can be also seen as a practice of invalidation of judicial enactment (Kmiec, 2004). One may observe that in both cases judicial activism stands for the limitation of power of governmental officials. Judicial activism is often criticized for lack of justice considerations. The opponents of judicial activism point out that sometimes it implies that embracing the political rationality rather than justice. Thus, Balkin & Levinson (2001) in a notorious case Bush v Gore judges were considered by political rationality rather than by the rule of law. In a word, one may observe the main feature of judicial activism is that it represents an ad hoc response to current situation, and such response may not necessarily be reasoned by existing laws. It is difficult to argue whether judicial activism is beneficial or by contrast, harmful. On the one hand, there are examples when judicial activism embraced important human rights. Clearly, a landmark decision in Brown v Board of Education which outlawed segregation in public school is an example of judicial activism, which departed from principles established earlier in Plessy v Ferguson when segregation was held legal. On the other hand, judicial activism may lead to limitation of certain rights as it is in Kelo v. The City of New London. In this case, the Supreme Court held that local governments may force property owners to sell out and make way for private economic development when officials decide it would benefit the public. Justice O’Connor who dissented fairly points out that now by virtue of this decision “all private property is now vulnerable to being taken and transferred to another private owner”. At the same time it is difficult to state whether there is a judicial activism in this case at all. The point is that judicial activism usually limits governmental powers, and in this case the situation is opposite – the Supreme Court actually enlarges the authority of governmental officials. However, Kelo v. The City of New London clearly represents a departure from earlier established principles. One may also observe that Kelo v. The City of New London in fact establishes that public benefit is higher and more valuable than private property rights. Such principle may be in line with current social mood when more and more people in the United States summon for redistribution of wealth. In this sense, Kelo v. The City of New London is an ad hoc response to current situation. This, response, however, may have long-term adverse consequences for the private property rights in the United States.
References:
Balkin, J. M., & Levinson, S. (2001). Understanding the constitutional revolution. Virginia Law Review, 87(6), 1045-1109.
Kelo v. City of New London, 545 U.S. 469 (2005)
Kmiec, K.D. (2004). The …