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The Nursery Years of ‘Judicial Activism’: From A Historian’s Shorthand to Media Catchphrase 1947–1962

Studies in Law, Politics, and Society

ISBN: 978-1-78714-344-9, eISBN: 978-1-78714-343-2

Publication date: 10 May 2017


The debate over ‘judicial activism’ has flourished in recent decades, but the term was in fact coined 70 years ago, by the historian Arthur Schlesinger, Jr. The legal academy has bemoaned the term as perpetually ill-defined, but can this be attributed to its equivocal beginnings on the pages of Fortune magazine? This chapter investigates the circumstances in which the term was produced and the early meanings given to it in scholarly work. It is argued that there was very little effort on the part of legal academics and political scientists to gather a consensus as to definition, or otherwise to treat the terminology with caution, before the term was wrested from the university cloisters and captured by the popular media in the mid-1960s.




My sincere thanks to Professors Jack Rakove, John Williams, Stuart Macintyre and Cheryl Saunders for their detailed comments on earlier versions of this chapter and on my broader monograph on the history of the ‘judicial activism’ terminology (published by Federation Press in 2017). My thanks also to Professors Barry Friedman, Jeremy Waldron and the participants at the NYU Law JD Workshop in 2010 as I began my research in this area and to the New York Public Library and in particular Lee Spilberg for his generous assistance while I delved into the Schlesinger archive. Finally, sincere thanks are also due to the anonymous referees for their helpful comments. All errors remain my own.


Josev, T. (2017), "The Nursery Years of ‘Judicial Activism’: From A Historian’s Shorthand to Media Catchphrase 1947–1962", Studies in Law, Politics, and Society (Studies in Law, Politics, and Society, Vol. 72), Emerald Publishing Limited, Leeds, pp. 53-80.



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