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

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