Quote Originally Posted by ichi
A judge is judicially conservative if he/she comes to a legal conclusion by following the letter of the law as closely as possible. This can include determining that a law contradicts other laws, or that a law is inconsistent with the Constitution.

Judicial activism, or positivism, is the result of a judge creating laws. It is not the result of judges striking down unconstitutional (or otherwise illegal) laws.

For example, if The Congress were to pass a law prohibiting more than 5 people to gather in one place, the court that struck down that law would be judicially conservative. A court that ruled that people must gather together would be judicially active.

ichi

Practical concerns, particularly in regards to case law are one thing, but as far as a basic Jurisprudential ethos is concerned: the above is not quite correct. Judicial activism is the assumption of extra-Constitutional authority by the Court. This includes Court created law or rights, as you noted, but it also includes striking down law. This is not a Constitutionally laid out power of the Court. This is very much tied up with Judicial Review. Courts have assumed this power, but originally it was not so.

Judicial Conservatism takes on many forms. There are: constructionist, statist, economic, libertarian as well as natural law theorists. Some of these can overlap on occasion. The more general conservatism tends toward majoritarian deference and restraint. For Judicial Review opponents this would also include restraint on Constitutionally troubling cases. The primary watchdog responsibility is seen to lie with the people, not the courts.