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Why We Need More Judicial Activism

dc.contributor.authorSherry, Suzanna
dc.date.accessioned2015-06-05T23:54:19Z
dc.date.available2015-06-05T23:54:19Z
dc.date.issued2013
dc.identifier.citation16 Green Bag 2d 449 (2013)en_US
dc.identifier.urihttp://hdl.handle.net/1803/7090
dc.descriptionpublished articleen_US
dc.description.abstractToo much of a good thing can be bad, and democracy is no exception. In the United States, the antidote to what the drafters of the Constitution called “the excess of democracy” is judicial review. Lately, however, judicial review has come under fire. Many on both sides of the political aisle accuse the Supreme Court of being overly activist and insufficiently deferential to the elected representatives of the people. I argue in this essay that criticizing the Court for its activism is exactly backwards: We need more judicial activism, not less. Courts engaging in judicial review are bound to err on one side or the other from time to time. It is much better for the health of our constitutional democracy if they err on the side of activism, striking down too many laws rather than too few. An examination of both constitutional theory and our own judicial history shows that too little activism produces worse consequences than does too much. If we cannot assure that the judges tread the perfect middle ground (and we cannot), it is better to have an overly aggressive judiciary than an overly restrained one.en_US
dc.format.extent1 PDF (5 pages)en_US
dc.format.mimetypeapplication/pdf
dc.language.isoen_USen_US
dc.publisherGreen Bagen_US
dc.subjectJudicial activismen_US
dc.subject.lcshJudicial review -- United Statesen_US
dc.subject.lcshPolitical questions and judicial power -- United Statesen_US
dc.subject.lcshUnited States. Supreme Courten_US
dc.titleWhy We Need More Judicial Activismen_US
dc.typeArticleen_US
dc.identifier.ssrn-urihttp://ssrn.com/abstract=2213372


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