Candidates should demonstrate an awareness of the mechanism for appointing judges to the Supreme Court, that are:

• The President nominates a candidate
• The Senate Judiciary Committee holds hearings to assess the suitability of the candidate, with a range of interested parties having an opportunity to make a contribution to the process
• The full Senate votes, with a simple majority required for confirmation

The fact that the Supreme Court can, and has, used its power of constitutional interpretation to shape public policy, means that everyone has an interest in the views, attitudes and values of the people who are nominated.

However, because Judges are appointed for life and life-expectancy is growing, anyone who is appointed may be helping to shape public policy for 30 years or more.

‘Judicial activism’ is a term which lacks precise definition, and is often used as a term of abuse for decisions with which the speaker or writer disagrees. Arguably, the most objective definition is that judicial activism is the overriding by the Supreme Court of a state or congressional law, or the reversal of one of the court’s own precedents; thus defined, judicial activism can be practised by both conservative and liberal justices, and cases such as Citizens United and Heller can arguably be seen as part a new era of conservative activism.

Arguments justifying judicial activism include:

• the principles of the constitution are clear, and it is the role of the court to protect them rom dilution or erosion by other branches of government
• the court’s own decisions are not immune from error and must be reversed if necessary legislators are often risk-averse, and slow to act for fear of offending one group or another; consequently, important social change can only be achieved by the court taking the lead and striking down archaic legislation
• state laws in particular are likely to promote values which have long since ceased to be acceptable

Arguments attacking judicial activism include:

• the constitution is vague in many places and its provisions subject to interpretation; consequently, no one can claim a definitive knowledge of its meaning, and, as an unelected body, the court should defer to the judgment of the other branches
• as the court lacks the legitimacy of the elected branches, it should strike down legislation only if it is in flagrant breach of the constitution
• judges are not expert in social policy and, if they attempt to substitute their judgment for legislators’, it is unlikely to produce successful policy
• if justices are seen to use judicial review to advance their own policy preferences, they risk eroding the standing and authority of the court
• if the court reverses its own decisions, especially within a relatively short space of time, again there is a danger that its authority is undermined
• federalism is a cornerstone of the US constitution, and, in striking down state laws, the court is denying states the legitimate right to protect regional ways of life