Abstract
This article will argue that the rejection of what scholars otherwise
view as controlling legal authority lies at the heart of judicial activism.
Furthermore, it will argue that judicial activism itself channels the
antiauthoritarian current in American culture (and in English culture
predating its importation to America). Part II will examine the extensive
scholarly writings already existing on judicial activism in order to identify
common themes and to explore to what extent scholars have arrived at a
consensus definition of judicial activism. Part III will then show that
judicial activism may better be understood within the context of law as
culture and will offer an updated definition of judicial activism that
accounts for a cultural component. Part IV will then delve into expressions
of antiauthoritarianism in broader, non-legal Anglo-American culture to
demonstrate under what circumstances Anglo-American culture actively
encourages antiauthoritarian behavior and attitudes. It will do so
specifically through the lens of recurring cultural motifs of outlaws and
pirates. Part V will then analyze four sets of judicially activist decisions
to gauge the extent to which the decisions align with culturally appropriate
exercises of antiauthoritarianism. The first set of decisions will consist of
United States Supreme Court decisions that scholars commonly describe
as activist. If judicial activism is indeed a cultural phenomenon, however,
then one would expect it to be more commonplace than a handful of high
profile and oft-discussed Supreme Court decisions cherry picked from
throughout history. Therefore, the second and third sets of decisions will
comprise United States Supreme Court cases from the 2017-2018 term
and cases from courts other than the United States Supreme Court. The
fourth set of decisions to be analyzed will be a selection of "problem
cases," which are activist cases that even apologists of judicial activism
decry, and non-activist cases that nonetheless face criticism for their
results. Ultimately, this article will argue that assessing judicial activism
through the cultural prism of acceptable antiauthoritarianism provides a
tool to differentiate between proper and improper judicial activism.
Document Type
Article
Publication Date
2020
8-27-2020
Repository Citation
Steenken, Beau, "Outlaws, Pirates, Judges: Judicial Activism as an Expression of Antiauthoritarianism in Anglo-American Culture" (2020). Law Faculty Scholarly Articles. 644.
https://uknowledge.uky.edu/law_facpub/644
