ConfirmThem

By AndrewHyman Posted in SCOTUS — Comments () / Email this page » / Leave a comment »

This phrase is pretty common these days, but it's not new. It began popping up in U.S. Supreme Court opinions almost forty years ago, and that's where I found this quote:

[D]eciding what the Constitution is, not from what it says, but from what we think it would have been wise for the Framers to put in it…[t]hat to me would be "judicial activism" at its worst.

This is from a dissenting opinion by Justice Hugo Black, in the case of United States v. Wade, 388 U.S. 218 (1967). Judicial activists are often nominated and confirmed by elected officials who don’t appreciate how inappropriate such judicial misconduct really is. Professor John Eastman presents a case in point of a judge who announced his activist philosophy during his confirmation hearing, but was confirmed anyway.

Incidentally, despite all of his flaws and mistakes, Hugo Black is my favorite judge of all time. John Marshall's number two.

UPDATE: According to this article by Keenan Kmiec (California Law Review, October, 2004), Arthur Schlesinger introduced the term "judicial activism" in a 1947 piece he wrote for Fortune Magazine. Ironically, Schlesinger classified Justice Black as a judicial activist. Kmiec's article is titled, THE ORIGIN AND CURRENT MEANINGS OF "JUDICIAL ACTIVISM."