Arthur Schlesinger Jr. introduced the term "judicial activism" in a January 1947 Fortune magazine article titled "The Supreme Court: 1947".
For example, Thomas Jefferson referred to the "despotic behaviour" of Federalist federal judges, in particular Chief Justice John Marshall.
Kermit Roosevelt III has argued that "in practice 'activist' turns out to be little more than a rhetorically charged shorthand for decisions the speaker disagrees with".
";[9][10] likewise, the solicitor general under George W. Bush, Theodore Olson, said in an interview on Fox News Sunday, with regard to a case for same-sex marriage he had successfully litigated, that "most people use the term 'judicial activism' to explain decisions that they don't like.
[17] Sentiments include: "The courts have gradually abandoned their proper role of policing the structural limits on government and neutrally interpreting the laws and constitutional provisions without personal bias.
[19] Other scholars have proposed that judicial activism is most appropriate when it restrains the tendency of democratic majorities to act out of passion and prejudice rather than after reasoned deliberation.
"[21] Detractors of judicial activism charge that it usurps the power of the elected branches of government and of legislatively created agencies, damaging the rule of law and democracy.
By the principle of separation of powers, a strong tradition in Canada and accepted practice, judges should respect the role of the legislature to create law.
[citation needed] Thus Canada's legal system may have more potential for conflicts with regards to the accusation of judicial activism, as compared to the United States.
[43][page needed] The Court can only practice judicial activism to the extent the EU Governments leave room for interpretation in the treaties.
[44][page needed] The Court makes important rulings that set the agenda for further EU integration, but it cannot happen without the consensual support of the member-states.
[46][47][48][49][50][51] New York Times writer Gardiner Harris sums this up as[52] India's judges have sweeping powers and a long history of judicial activism that would be all but unimaginable in the United States.
All such rulings carry the force of Article 39A of the Constitution of India,[55] although before and during the Emergency the judiciary desisted from "wide and elastic" interpretations, termed Austinian, because Directive Principles of State Policy are non-justiciable.
The modern trend of judicial activism began in 1973 when the Allahabad High Court rejected the candidature of Indira Gandhi in State of Uttar Pradesh v. Raj Narain.
[65] The perceptions of judicial activism derived from the number of applications for judicial review made to the courts, which led to R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland in 2019, joint landmark constitutional law cases on the limits of the power of royal prerogative to prorogue the Parliament of the United Kingdom.
[69] Obviously since the United Kingdom's judiciary powers do not come from electoral methods, they differ in strengths, weaknesses, opportunities, and threats compared to a free and democratic system.
[70][71][72][73] Baroness Hale of Richmond raises the popular concern that this system operates on a fundamentally different playbook to the United States of America's court of law, and personal bias can be inherited, through an 'old boys' club'.
Among critics of judicial activism in the United Kingdom are Richard Ekins, John Finnis, and Sir Stephen Laws.