What is Judicial Activism?
The terms "judicial restraint" and "judicial activism" describe how a judge judges, that is, how he applies the law to facts in the cases before him. The difference is that restrained judges take the law as it is and activist judges make up the law as they go along.
Restrained judges respect the political process, whether they agree with its results or not, until it clearly crosses a clear constitutional line. Activist judges feel free to re-write statutes or the Constitution, to use extra-legal factors in their decisions, to ignore limits on their power in the search for desirable results.
"Judicial Restraint" is the same as the "judgement" that Alexander Hamilton said should guide judges, while "judicial activism" is the same as the "will" that Hamilton said should not guide judges. Others have defined it similarly:
Republican Conference Resolution (1997):
Senator Sam Ervin:
Chief Justice Charles Evans
Ed Asner, playing a judge in
ABC's The Practice, 9/27/97:
Also, see Tom Jipping's testimony before the Senate Judiciary Subcommittee on the Constitution!
Free Congress Research and Education Foundation