Geof Stone Asks "When Is Judicial Activism Appropriate?"

When is judicial activism appropriate?
Geoffrey R. Stone
Chicago Tribune
April 13, 2012

The Supreme Court's consideration of the constitutionality of the Patient Protection and Affordable Care Act has renewed debate about judicial activism versus judicial restraint. Liberals have warned that a U.S. Supreme Court decision invalidating this act would represent unwarranted judicial activism. In response, conservatives have accused liberals of hypocrisy. After all, if liberals celebrated the judicial activism of the Warren court, why should they decry the judicial activism of the Roberts court?

This accusation is unfounded, but it carries considerable weight in public discourse. I want to set the record straight.

At the outset, it is necessary to explain the difference between judicial activism and judicial restraint. When a court exercises restraint, it generally defers to the judgment of the elected branches. Even in the face of a claim that a particular law violates the Constitution, the court gives the elected branches the benefit of the doubt and upholds the challenged law as long as it is reasonable. When a court engages in judicial activism, it second-guesses the judgment of the elected branches and invalidates the law unless the government can prove to the court that the law is clearly constitutional.

Geoffrey R. Stone