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In recent years, the terms “judicial activist” and “activist court” have become commonplace in public policy vernacular. While both liberals and conservatives have all too frequently used these terms to describe judges who issue opinions with which they disagree, a “judicial activist” or “activist court” must be defined more narrowly.

The most accurate layman’s definition of “judicial activism” is a judge who or court that possesses a tendency to write new law or establish public policy from the bench rather than apply existing laws to the facts and questions before them.

Colleen Pero, a legal analyst specializing in reviewing state supreme court opinions for philosophical trends and directions, has gone further in better defining “judicial activism” by examining decisions as they relate to certain legal indicators. Specifically, Colleen focuses on five indicators, or signposts, indicative of an activist court. These five indicators analyze:

• Whether decisions prompt reaction by the legislature repudiating such decisions and restating the law as written.
• Whether a court or judge is unpredictable and inconsistent when dealing with similar legal principles.
• Whether a court repudiates its own precedent and shops in other state or international courts to find jurisdictions that support its preferred outcome.
• Whether a decision “inserts” non-existent words or ignores the written words in a statute or contract to secure the court’s preferred outcome.
• Whether a court in issuing its opinion uses vague or general constitutional language to defeat the clear will of the voters or acts of the legislature.

According to Colleen, if any of these indicators properly describe a court or its decisions, the court is, by definition, activist.
In her recently released 29-page report, The ‘Activist’ Journey of the Florida Supreme Court, commissioned by the American Justice Partnership, Colleen applies the five indicators above to the Florida Supreme Court.

Her paper reveals not only the presence of one or two of these indicators, but all of them, making the Florida Supreme Court and a majority of its judges activist.

Recently, Colleen Pero joined CFIF Corporate Counsel & Senior Vice President Renee Giachino to discuss judicial activism and her report. Click on the link below to listen to the interview originally heard on "Your Turn - Meeting Nonsense With Commonsense" on WEBY 1330 AM, Northwest Florida's talk radio…[Listen]