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Judicial activism

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Judicial activism is a judicial philosophy holding that courts can and should go beyond the applicable law to consider broader societal implications of their decisions. It is sometimes used as an antonym of judicial restraint.[1] The term usually implies that judges make rulings based on their own views rather than on precedent.[2] The definition of judicial activism and the specific decisions that are activist are controversial political issues. The question of judicial activism is closely related to judicial interpretation, statutory interpretation, and separation of powers.

Etymology

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Arthur Schlesinger Jr. introduced the term "judicial activism" in a January 1947 Fortune magazine article titled "The Supreme Court: 1947".[3]

The phrase has been controversial since its beginning. An article by Craig Green, "An Intellectual History of Judicial Activism," is critical of Schlesinger's use of the term; "Schlesinger's original introduction of judicial activism was doubly blurred: not only did he fail to explain what counts as activism, he also declined to say whether activism is good or bad."[4]

Even before this phrase was first used, the general concept already existed. For example, Thomas Jefferson referred to the "despotic behaviour" of Federalist federal judges, in particular Chief Justice John Marshall.[5]

Definitions

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Black's Law Dictionary defines judicial activism as a "philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions."[6]

Political science professor Bradley Canon has posited six dimensions along which judge courts may be perceived as activist:[7] majoritarianism, interpretive stability, interpretive fidelity, substance/democratic process, specificity of policy, and availability of an alternate policymaker.

David A. Strauss has argued that judicial activism can be narrowly defined as one or more of three possible actions: overturning laws as unconstitutional, overturning judicial precedent, and ruling against a preferred interpretation of the constitution.[8]

Others have been less confident of the term's meaning, finding it instead to be little more than a rhetorical shorthand. Kermit Roosevelt III has argued that "in practice 'activist' turns out to be little more than a rhetorically charged shorthand for decisions the speaker disagrees with". Roosevelt defines judicial activism as "an approach to the exercise of judicial review, or a description of a particular judicial decision, in which a judge is generally considered more willing to decide constitutional issues and to invalidate legislative or executive actions.";[9][10] likewise, the solicitor general under George W. Bush, Theodore Olson, said in an interview on Fox News Sunday, with regard to a case for same-sex marriage he had successfully litigated, that "most people use the term 'judicial activism' to explain decisions that they don't like."[11] Supreme Court Justice Anthony Kennedy said that, "An activist court is a court that makes a decision you don't like."[12][13]

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See also: Indeterminacy debate in legal theory and Legal formalism

Defenders of judicial activism say that in many cases it is a legitimate form of judicial review and that the interpretation of the law must change with changing times. Sunset provisions can limit the interpretation uncertainties in the law.[14]

According to law professor Brian Z. Tamanaha, "Throughout the so-called formalist age, it turns out, many prominent judges and jurists acknowledged that there were gaps and uncertainties in the law and that judges must sometimes make choices."[15][16] Under this view, any judge's use of judicial discretion will necessarily be shaped by that judge's personal and professional experience and his or her views on a wide range of matters, from legal and juridical philosophy to morals and ethics. This implies a tension between granting flexibility (to enable the dispensing of justice) and placing bounds on that flexibility (to hold judges to ruling from legal grounds rather than extralegal ones).

Critical legal studies argues that political argument and legal argument cannot be entirely separated.[17]

Sentiments include: "The courts have gradually abandoned their proper role of policing the structural limits on government and neutrally interpreting the laws and constitutional provisions without personal bias."[18]

Judicial independence

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See also: Judicial independence

Some proponents of a stronger judiciary argue that the judiciary helps provide checks and balances and should grant itself an expanded role to counterbalance the effects of transient majoritarianism, i.e., there should be an increase in the powers of a branch of government that is not directly subject to the electorate, so that the majority cannot dominate or oppress any particular minority through its elective powers.[19] Other scholars have proposed that judicial activism is most appropriate when it restrains the tendency of democratic majorities to act out of passion and prejudice rather than after reasoned deliberation.[20]

Richard H. Fallon Jr. quotes Justice Holmes "great cases... make bad law." in their explanation on presidential overreach. "Presidents frequently interpret their own powers without judicial review and where executive precedents play a large role in subsequent interpretive debates, some of the historical assertions of presidential authority that stretch constitutional and statutory language the furthest seem hard to condemn in light of the practical stakes."[21]

Electoral accountability

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See also: Accountability and Legitimacy (political)

Detractors of judicial activism charge that it usurps the power of the elected branches of government and of legislatively created agencies, damaging the rule of law and democracy.[22] Advocates of minimalist definitions of democracy focus on electoral accountability as source of political legitimacy, while maximalist definitions of democracy, include additional values typically enshrined in the constitutions.[23] Parliamentary sovereignty views legislative bodies as supreme over judiciary.[24] Constitutionalism views the constitution as supreme.[25]

By country

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United States

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See also: Criticism of the United States Supreme Court

The following rulings have been characterized as judicial activism.

Some US Presidents have also commented on the idea. When President George W. Bush announced his first nominations for the federal bench, he declared:

Every judge I appoint will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench. To paraphrase 4th president of the United States James Madison Jr (hailed as the Father of the Constitution for his role in drafting the Constitution of the United States and the Bill of Rights) the courts exist to exercise not the will of men, but the judgment of law. My judicial nominees will know the difference.[39][40][41]

Canada

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See also: Judicial activism in Canada

Judges in Canada are given the power to interpret law passed down from the legislature, discretionary power to resolve disputes, and the power to use common law and accepted judicial policy to render judgement. By the principle of separation of powers, a strong tradition in Canada and accepted practice, judges should respect the role of the legislature to create law.[according to whom?] Judges are also charged to impartially apply the law as it is written.[citation needed]

Canada has a legal system that is derived from the British system of common law (and the French system in the province of Quebec). Canadian Courts have a structure that relies more heavily on the discretion of its judges, policy and common law to create a workable body of law.[citation needed] Thus Canada's legal system may have more potential for conflicts with regards to the accusation of judicial activism, as compared to the United States.[neutrality is disputed]

Former Chief Justice of the Supreme Court of Canada Beverley McLachlin has stated that:

the charge of judicial activism may be understood as saying that judges are pursuing a particular political agenda, that they are allowing their political views to determine the outcome of cases before them. ... It is a serious matter to suggest that any branch of government is deliberately acting in a manner that is inconsistent with its constitutional role.[1]

European Union

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See also: Judicial activism in the European Union

In the Cassis de Dijon Case, the European Court of Justice ruled the German laws prohibiting sales of liquors with alcohol percentages between 15% and 25% conflicted with EU laws. This ruling confirmed that EU law has primacy over member-state law.[42] When the treaties are unclear, they leave room for the Court to interpret them in different ways. When EU treaties are negotiated, it is difficult to get all governments to agree on a clear set of laws. In order to get a compromise, governments agree to leave a decision on an issue to the Court.[43][page needed]

The Court can only practice judicial activism to the extent the EU Governments leave room for interpretation in the treaties.[44][page needed]

The Court makes important rulings that set the agenda for further EU integration, but it cannot happen without the consensual support of the member-states.[44][page needed]

In the Irish referendum on the Lisbon Treaty many issues not directly related to the treaty, such as abortion were included in the debate because of worries that the Lisbon Treaty will enable the European Court of Justice to make activist rulings in these areas. After the rejection of the Lisbon Treaty in Ireland, the Irish Government received concessions from the rest of the member states of the European Union to make written guarantees that the EU will under no circumstances interfere with Irish abortion, taxation or military neutrality.[45] Ireland voted on the Lisbon Treaty a second time in 2009, with a 67.1% majority voting Yes to the treaty.

India

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India has a recent history of judicial activism, originating after the Emergency in India which saw attempts by the Government to control the judiciary. Public Interest Litigation was thus an instrument devised by the courts to reach out directly to the public, and take cognizance though the litigant may not be the victim. "Suo motu" cognizance allows the courts to take up such cases on its own. The trend has been supported as well as criticized.[46][47][48][49][50][51] New York Times writer Gardiner Harris sums this up as[52]

India's judges have sweeping powers and a long history of judicial activism that would be all but unimaginable in the United States. In recent years, judges required Delhi's auto-rickshaws to convert to natural gas to help cut down on pollution,[53][54] closed much of the country's iron-ore-mining industry to cut down on corruption and ruled that politicians facing criminal charges could not seek re-election. Indeed, India's Supreme Court and Parliament have openly battled for decades, with Parliament passing multiple constitutional amendments to respond to various Supreme Court rulings.

All such rulings carry the force of Article 39A of the Constitution of India,[55] although before and during the Emergency the judiciary desisted from "wide and elastic" interpretations, termed Austinian, because Directive Principles of State Policy are non-justiciable. This despite the constitutional provisions for judicial review and B R Ambedkar arguing in the Constituent Assembly Debates that "judicial review, particularly writ jurisdiction, could provide quick relief against abridgment of Fundamental Rights and ought to be at the heart of the Constitution."[56][better source needed]

Fundamental Rights as enshrined in the Constitution have been subjected to wide review, and have now been said to encompass a right to privacy, right to livelihood and right to education, among others. The 'basic structure' of the Constitution has been mandated by the Supreme Court not to be alterable, notwithstanding the powers of the Legislature under Article 368.[55] This doctrine has been recognized by several countries like Bangladesh, Pakistan and Malaysia as part of their jurisprudence. Other countries such as Singapore, Belize and Uganda has heard important cases regarding the use of this doctrine in their own countries. The modern trend of judicial activism began in 1973 when the Allahabad High Court rejected the candidature of Indira Gandhi in State of Uttar Pradesh v. Raj Narain. The introduction of public interest litigation by Justice V. R. Krishna Iyer further expanded its scope.[57] Recent examples quoted include the order to Delhi Government to convert the Auto rickshaw to CNG,[53] a move believed to have reduced Delhi's erstwhile acute smog problem (it is now argued to be back)[58] and contrasted with that of Beijing.[59]

Israel

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See also: 2023 Israeli judicial reform

The Israeli approach to judicial activism has transformed significantly in the three decades since the 1992 Constitutional Revolution led by Aharon Barak, and, as of 2022, presents an especially broad version of robust judicial review and intervention.[60][61] Additionally, taking into consideration the intensity of public life in Israel and the challenges that the country faces (including security threats), the case law of the Israeli Supreme Court[62] touches on diverse and controversial public matters.[original research?]

United Kingdom

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British courts were largely deferential towards their attitudes against the government before the 1960s. Since then, judicial activism has been well established throughout the UK. One of the first cases for this activism to be present was the Conway v Rimmer (1968); a Public-interest immunity, previously known as Crown privilege.[63] Previously, a claim like this would be defined as definitive, but the judges had slowly begun to adopt more of an activist line approach.[64] This had become more prominent in which government actions were overturned by the courts. This can inevitably lead to clashes between the courts against the government as shown in the Miller case consisting of the 2016 Conservative government.[65] The perceptions of judicial activism derived from the number of applications for judicial review made to the courts, which led to R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland in 2019, joint landmark constitutional law cases on the limits of the power of royal prerogative to prorogue the Parliament of the United Kingdom. This can be seen throughout the 1980s, where there were about 500 applications within a year.[66] This number dramatically increased as by 2013, there were 15,594 applications.[67] This trend has become more frequent as time passes along, possibly pointing to a greater influence in the UK courts against the government. Along with the number of applications submitted to the courts, in some instances it has attracted media attention. For instance, in 1993, William Rees-Mogg had challenged the Conservative government to ratify the Maastricht Treaty (a legislation that self described as "a new stage in the process of European integration"), which eventually had formed into the European Union and initiated the Eurodollar.[68] This was rejected by the Divisional Court and attracted large amounts of media attention to this case. Through these components it is largely evident that judicial activism should not be exaggerated. Ultimately, judicial activism is greatly established throughout the UK as the courts are becoming more prone to scrutinise at their own will, and at times, reject government legislation that they deem to be not within balance to the UK constitution and becoming more visible doing so.[69]

Obviously since the United Kingdom's judiciary powers do not come from electoral methods, they differ in strengths, weaknesses, opportunities, and threats compared to a free and democratic system.[70][71][72][73] Baroness Hale of Richmond raises the popular concern that this system operates on a fundamentally different playbook to the United States of America's court of law, and personal bias can be inherited, through an 'old boys' club'.

Among critics of judicial activism in the United Kingdom are Richard Ekins, John Finnis, and Sir Stephen Laws. Policy Exchange's Judicial Power Project, headed by Ekins, is dedicated to opposing judicial activism by British judges.

See also

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Notes

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  1. ^ Wolfe, Christopher (1997). Judicial activism. Rowman & Littlefield Publishers, Inc. ISBN 0-8476-8531-4.
  2. ^ "judicial activism | Definition, Types, Examples, & Facts | Britannica". www.britannica.com. Retrieved 18 February 2022. It is not pejorative, and studies suggest that it does not have a consistent political valence.
  3. ^ Kmiec, Keenan D. (2004). "The Origin and Current Meanings of 'Judicial Activism'". Cal. L. Rev. 92 (5): 1441–1477. doi:10.2307/3481421. JSTOR 3481421. Archived from the original on 6 July 2017. Retrieved 12 June 2022. Schlesinger's article profiled all nine Supreme Court justices on the Court at that time and explained the alliances and divisions among them. The article characterized Justices Black, Douglas, Murphy, and Rutledge as the 'Judicial Activists' and Justices Frankfurter, Jackson, and Burton as the 'Champions of Self Restraint.' Justice Reed and Chief Justice Vinson comprised a middle group.
  4. ^ "An Intellectual History of Judicial Activism" Craig Green, August 2008, p. 4
  5. ^ Haines, Charles Grove (1944). "The Role of the Supreme Court in American Government and Politics 1789–1835". University of California Press – via Google Books.
  6. ^ As quoted in "Takings Clause Jurisprudence: Muddled, Perhaps; Judicial Activism, No" DF O'Scannlain, Geo. JL & Pub. Pol'y, 2002
  7. ^ Canon, Bradley C. (1983). "Defining the Dimensions of Judicial Activism". Judicature. 66 (6): 236–247.
  8. ^ "David Strauss Looks at History and Future of the 'Activist'Supreme Court | University of Chicago Law School". www.law.uchicago.edu. 12 July 2010.
  9. ^ "judicial activism | Definition, Types, Examples, & Facts | Britannica". www.britannica.com. 29 December 2023.
  10. ^ Kermit Roosevelt, III, The Myth of Judicial Activism: Making Sense of Supreme Court Decisions, Yale University Press, 2008, ISBN 978-0-300-12691-4.
  11. ^ Wallace, Chris; Olson, Theodore (8 August 2010). "Ted Olson on Debate Over Judicial Activism and Same-Sex Marriage". Fox News Sunday. Fox News Channel.
  12. ^ Frederick P. Lewis, The context of judicial activism: the endurance of the Warren Court legacy in a conservative age, Rowman & Littlefield: 1999, ISBN 0-8476-8992-1
  13. ^ Matt Sedensky, "Justice questions way court nominees are grilled," Associated Press, May 14, 2010, Retrieved 14 May 2010
  14. ^ Davis, Lewis Anthony (1981). "Review Procedures And Public Accountability In Sunset Legislation: An Analysis And Proposal For Reform". Administrative Law Review. 33 (4). American Bar Association: 393–413. ISSN 0001-8368. JSTOR 40709182.
  15. ^ Tamanaha, Brian Z. (2010). Beyond the Formalist-Realist Divide: The Role of Politics in Judging. Princeton University Press. ISBN 978-0-691-14279-1.
  16. ^ See also, Alschuler, Albert W., Law Without Values: The Life, Work, and Legacy of Justice Holmes (University of Chicago Press, 2000), p. 98. ("Possibly some now-obscure German legal theorist fit Holmes's description [in The Common Law] of the deductive formalist bogeyman, but I know of no American who did.")
  17. ^ Price, David Andrew. "Taking rights cynically: a review of critical legal studies." The Cambridge Law Journal 48.2 (1989): 271–301.
  18. ^ Slattery, Elizabeth. "How to Spot Judicial Activism: Three Recent Examples". The Heritage Foundation.
  19. ^ Ely, John Hart (1980). Democracy and Distrust. Cambridge: Harvard University Press. chapters 4–6. ISBN 0-674-19636-8.
  20. ^ Evan Zoldan, "Targeted Judicial Activism," 16 Green Bag 2d 465–466 (2014) SSRN 2310915
  21. ^ Fallon, Richard (1 November 2013). "Interpreting Presidential Powers". Duke Law Journal. 63 (2): 347–392.
  22. ^ Justice Antonin Scalia's dissent in Romer v. Evans; Romer, Governor of Colorado, et al. v. Evans et al. (94-1039), 517 U.S. 620 (1996).
  23. ^ Feldman, David (1990). "Democracy, the Rule of Law and Judicial Review". Federal Law Review. 19 (1): 1–30. doi:10.1177/0067205X9001900101. ISSN 0067-205X.
  24. ^ "Statutory Interpretation and Legislative Supremacy". 78 Geo. L. J. 281 (1989–1990).
  25. ^ Don E. Fehrenbacher, Constitutions and Constitutionalism in the Slaveholding South (University of Georgia Press, 1989). p. 1. ISBN 978-0-8203-1119-7.
  26. ^ Hall, Kermit (1992). Oxford Companion to the Supreme Court of the United States. Oxford University Press. p. 889. ISBN 9780195176612. American legal and constitutional scholars consider the Dred Scott decision to be the worst ever rendered by the Supreme Court. Historians have abundantly documented its role in crystallizing attitudes that led to war. Taney's opinion stands as a model of censurable judicial craft and failed judicial statesmanship.
  27. ^ Vincent Martin Bonventre, "Judicial activism, judges' speech, and merit selection: conventional wisdom and nonsense," Albany Law Review, Summer 2005, Judicial activism, judges' speech, and merit selection: conventional wisdom and nonsense Archived 2011-11-25 at the Wayback Machine Albany Law Review, 2005
  28. ^ Greenhouse 2005, pp. 135–36
  29. ^ The real case of judicial activism Archived 2016-03-07 at the Wayback Machine The Times Herald, June 2, 2009
  30. ^ Mann, Thomas E. (26 January 2010). "Commentary: Citizens United vs. FEC is an egregious exercise of judicial activism". McClatchy News Service. Archived from the original on 15 March 2010. Retrieved 29 April 2010.
  31. ^ Stone, Geoffrey R. (2012). "Citizens United and Conservative Judicial Activism" (PDF). University of Illinois Law Review. 2012 (2): 485–500.
  32. ^ "Symposium: Judicial activism on marriage causes harm: What does the future hold?". SCOTUSblog. 26 June 2015. Retrieved 3 April 2017.
  33. ^ Marvit, Moshe Z. (26 February 2018). "Opinion | The Consequences of Judicial Activism on the Supreme Court". The New York Times. ISSN 0362-4331. Retrieved 25 October 2020.
  34. ^ Bruno, Robert (21 May 2018). "A Supreme Court ruling for Janus would be judicial activism at its worst". chicagotribune.com. Retrieved 25 October 2020.
  35. ^ Chermerinsky, Edwin (9 July 2018). "The Supreme Court's Janus ruling was pure judicial activism. Unions, look out". The Sacramento Bee. Retrieved 25 October 2020.
  36. ^ "Supreme Court Rules For DREAMers, Against Trump". NPR. 18 June 2020. Retrieved 9 December 2020.
  37. ^ "Lewis Denounces DACA Ruling as Judicial Activism". LewisForMN. 18 June 2020. Retrieved 9 December 2020.
  38. ^ Filipovic, Jill (2023). "Conservatives love judicial activism – as long as the law is moved in their favor". The Guardian.
  39. ^ "Hot Topics: Judicial Activism". fedsoc.org. July 2003.
  40. ^ "Judicial Activism Bush Style". Rewire News Group. 20 June 2006.
  41. ^ "Untitled". law2.umkc.edu.
  42. ^ EUabc – Cassis de Djion case: http://en.euabc.com/word/140
  43. ^ Bache & George 2006.
  44. ^ a b Moravcsik 2002.
  45. ^ Irish secure concessions on Lisbon Treaty: http://www.europeanvoice.com/article/2008/12/irish-secure-concessions-on-lisbon-treaty/63409.aspx
  46. ^ "Tyranny Of The Unelect Influencing Judiciary?". legalserviceindia.com.
  47. ^ "judicial Supremacy v. Parliamentary Supremacy in India – Lloyd Law". www.lloydlawcollege.edu.in.
  48. ^ Anant, T. C. A.; Jaivir Singh (2002). "An Economic Analysis of Judicial Activism". Economic and Political Weekly. 37 (43): 4433–4439. JSTOR 4412779.
  49. ^ "Opinion | Rana Ayyub: The destruction of India's judicial independence is almost complete". The Washington Post. 24 March 2020. Retrieved 11 June 2022.
  50. ^ Rai, Diva (22 June 2021). "Indian Judiciary - inducing activism or leading towards overreach".
  51. ^ Tewari, Manish; Saxena, Rekha (2017). "The Supreme Court of India". Courts in Federal Countries. University of Toronto Press. pp. 223–255. ISBN 9781487500627. JSTOR 10.3138/j.ctt1whm97c.12.
  52. ^ Harris, Gardiner (11 December 2013). "India's Supreme Court Restores an 1861 Law Banning Gay Sex". The New York Times.
  53. ^ a b "Note on change over to CNG in transport sector in Delhi". Archived from the original on 4 March 2016. Retrieved 21 December 2013.
  54. ^ "Supreme Court of India Cause List". Causelists.nic.in. Archived from the original on 19 January 2014. Retrieved 21 December 2013.
  55. ^ a b "The Constitution Of India". Lawmin.nic.in. Archived from the original on 2 April 2012. Retrieved 21 December 2013.
  56. ^ Singh, Satbir. Where did the revolution go? The Supreme Court of India & Socio-economic rights since the end of Emergency Rule (Masters thesis). University of Oxford – via www.academia.edu.
  57. ^ T. R. Andhyarujina, "Disturbing trends in judicial activism", The Hindu, 6 August 2012 Retrieved 21 December 2019
  58. ^ Neha Lalchandani, TNN (3 November 2012). "Delhi enveloped in smog, back to pre-CNG levels". The Times of India. Archived from the original on 5 November 2012. Retrieved 21 December 2013.
  59. ^ "Beijing like Delhi, goes the CNG way!!". 2point6billion.com. 27 August 2007. Retrieved 21 December 2013.
  60. ^ "Barak-Erez, Daphne – 'Broadening the Scope of Judicial Review in Israel: Between Activism and Restraint' INJlConLaw 8; (2009) 3 Indian Journal of Constitutional Law 118". www.commonlii.org.
  61. ^ "The Tal Law: Judicial Activism at its Height". en.idi.org.il. 20 April 2012. Retrieved 20 April 2024.
  62. ^ "Israeli Supreme Court decisions search – Israeli Lawyers | Israeli Law Firm Golan & Co". Israeli Supreme Court Decisions database. Archived from the original on 5 May 2014. Retrieved 15 May 2014.
  63. ^ "Conway v Rimmer | [1968] AC 910 | United Kingdom House of Lords | Judgment | Law | CaseMine". www.casemine.com. Retrieved 22 January 2021.
  64. ^ Scarman, Leslie (1974). English Law - The New Dimension. London: The Hamlyn Trust. pp. 48–49. ISBN 9780420446909.
  65. ^ "Gina Miller: Who is campaigner behind Brexit court cases?". BBC News. 25 September 2019. Retrieved 23 January 2021.
  66. ^ "Judicial review procedures to be made simpler". The Independent. 23 October 2011. Retrieved 22 January 2021.
  67. ^ "The true statistics behind judicial review's success rates". UK Human Rights Blog. 23 March 2015. Retrieved 22 January 2021.
  68. ^ "Lord Rees-Mogg Loses Challenge to Maastricht Treaty". AP News. Retrieved 23 January 2021.
  69. ^ Scarman, Leslie (1974). English Law - The New Dimension. London: The Hamlyn Trust. pp. 48–52. ISBN 9780420446909.
  70. ^ "Judicial selection in the states". Ballotpedia.
  71. ^ "Lady Hale warns UK not to select judges on basis of political views". the Guardian. 18 December 2019.
  72. ^ "Judges and Parliament". www.judiciary.uk.
  73. ^ "The justice system and the constitution". www.judiciary.uk.

References

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Further reading

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