Where the legislature does not act, the citizenry cannot be left in chaos. The judiciary fills that vacuum by applying sound judicial principles to new circumstances. Congress had failed to act in many of the most heated issues that have faced America. Whether it be slavery, civil rights, abortion or tobacco regulation, Congress has been frozen by individual Congressmen's desire to remain universally appealing to the electorate. After years of Congressional deadlock, it took an executive order to abolition slavery and, with the latter three, it took the judicial system which raised questions through lawsuits. The legal system is capable of making a decision, even when the course of action it is not politically expedient.

Judicial activism is not, however, an abuse of the legal process or an evasion of democratic accountability. It is an integral part of each of these. The American system is not meant to grind to halt when bi-polarity drives an unforgeable gap between the proponents of either side and paralyzes those in the middle. A decision is necessary, and the judiciary has proven over time that it is best suited to give one that is based on legal principles and removed from the political debate. That is the legal process, not an abuse of it. Likewise, the judicial decision is then subject both the de jure and de facto process of accountability existent in The Constitution. First, Congress has the power to overturn it through legislation, which would require each side working together. Second, if the decision is so far removed from the needs of the nation, it is interpreted away by the judiciary itself. Judges will either interpret the decision differently than originally intended or isolate it by applying it only to its specific set of facts.

In the tobacco law suits, the industry understood these principles and chose to settle rather than subject themselves to the actual damages which they have caused, as well as a binding legal decision creating a precedent. The settlement was a victory for the industry more than for the states and smoking opponents because it mitigated damaged in a controlled manner while avoided being held legally accountable. Because this instance came to a conclusion through a settlement is not be a negative commentary on the judicial system, but a positive commentary on the judicially sound decision that would have resulted. The industry knew that it could not sway a judge's decision through donations or spin campaigns; the issue was reduced to its facts and the facts would have spelled big losses to the industry.

The opinions of the citizenry and, as a result, Congress, demonstrated the need for a judicial decision on this issue. Leading up to the Congressional vote on the first settlement agreement, polls showed that most people were in favor of regulating the industry. Reflecting these numbers, it appeared there would be sufficient Congressional votes for it to pass. However, as the vote neared and the industry spent tens of millions of dollars on an advertising campaign, popular opinion waned and, with it, Congressional support. This demonstrates the influential power of interest groups and, rather than provide an argument against judicial activism, supports the need for sound, non-political and non-corruptible decision-making bodies. Yet, even this is not a call for judicial supremacy or dictated regulation because Congress, representing the will of the people (however swaying in the wind) still has the power to overturn the judicial decision through legislation.

Many argue against the merits of the tobacco lawsuits which is based on the additional costs to states for health care as uninsured smokers die. The most notable argument is that smokers die younger and, therefore, save the public money. This reasoning is both unsound and fails to understand the parties involved in this suit. First, it lacks merit because smokers may die younger, but the expense of taking care of a cancer patient over an extended period of time is much greater than the average cost of care for an any individual, let alone the typical person receiving state-funded care. Only the most obscure and serious physical ailments cost more than the treatment of cancer. Smoking-related deaths up the care costs to the maximum with everyone in the category, irregardless of the age they would have died. This does not even take into consideration the unfortunate fact that a large portion of individuals who could receive state-funded care do not regularly use it and often die of undiagnosed and curable ailments. Second, a smoker's early death does not save the state money. Most social programs paid on the basis of age are funded by the federal government, not the states. Therefore, by dying young smokers may save the federal government from having to pay social security benefits, but do not save money for the states. Furthermore, this reasoning fails to consider the punitive aspect of the legislation. The evidence is now overwhelming that the tobacco industry has targeting underage minors for decades. In most states it is a felony punishable of upwards of ten years in prison to create a risk of injury to a minor. The monetary settlement pales in comparison to the number of counts of this crime that could have been brought against tobacco executives who could have faced hundreds of years each in prison. The merits of the lawsuit were legally sound and the industry and its executives carved themselves an inexpensive settlement that saved their companies billions and, possibly, their own freedom.