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What is an “activist judge” and what would Federalists like Adams and Hamilton feel...

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lifeinlove | Student, Undergraduate | Valedictorian

Posted October 25, 2013 at 7:57 AM via web

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What is an “activist judge” and what would Federalists like Adams and Hamilton feel towards it?  From this position, can there be a connection between the culture of America and attitudes towards the powers of the judiciary?

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Ashley Kannan | Middle School Teacher | (Level 3) Distinguished Educator

Posted October 25, 2013 at 10:57 AM (Answer #1)

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A judge who is considered an "activist" believes "that in determining whether laws would meet constitutional muster," he/ she acted "more as a legislative body than as a judicial body."  The activist idea suggests that the Court is an active agent of change in legal and social settings.  An activist judge is one who believes that their power can be used to both legally interpret laws and actions, but also move towards a realm that is closely associated with policy construction.  The Activist judge on a federal judicial level asserts that the Supreme Court is a powerful element in American governent, asserting national strength.  In this regard, Federalists like Adams and Hamilton would favor such a vision of judicial activism.  Federalists found an ally in Justice John Marshall.  In Marbury vs. Madison, Chief Justice John Marshall asserted the idea of judicial review which firmly established the power of the modern Supreme Court.  A federal supreme court was deemed as essential to examine the Constitutionality of laws and actions and enforce this on a national level.  This is something that appealed to the Federalists.  On this national level, activism would be something that Adams and Hamilton would embrace.

In terms of a connection between American culture and the powers of the judiciary, I would suggest that the Marshall idea of judicial review reflects a basic tenet of American culture.  There has been a malleable quality to American quality.  It seeks to review and reflect on practices and move towards the sphere of "getting it right" more times than not.  The idea that no single person or force can deem something absolute is a part of American culture that can be seen in the notion of judicial review and judicial action, itself.  For example, it was the Supreme Court under Chief Justice Earl Warren that ruled segregation in America was unconstitutional and that racial integration in public spaces much happen "with all deliberate speed."  Chief Justice Warren Burger helped to author decisions in which a women's right to choose to have an abortion was upheld through Roe v. Wade and in which the President was ruled to be limited by the laws of the Constitution in United States v. Nixon.  In these examples, judicial review and potential activism became reflective of American culture.  The court reflected attitudes of change and social transformation.  From as early as "form a more perfect union," American culture has been seen as a force in which democracy is advanced with each step.  The court in the form of judicial review and judicial activism have helped to mirror this culture, reflecting that anything seen as dogmatic or absolute is subject to change and reflection by the judicial branch as it seeks to interpret the meaning and function of the Constitution.

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