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Judicial activism

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Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its 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

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

A survey of judicial review in practice during the last three decades[which?] shows that judicial activism has characterized the decisions of the Supreme Court at different times.[citation needed]

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]

Echoed sentiments in many articles, such as "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."[14]

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."[15]

Debate

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.[16] 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.

A third view is that so-called "objective" or "formalist" interpretation of the law does not exist. 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."[17][18] 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).

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]

Moreover, they argue that the judiciary strikes down actions of both elected and unelected officials, in some instances acts of legislative bodies reflecting the view the transient majority may have had at the moment of passage and not necessarily the view the transient majority may have at the time the legislation is struck down. Also, the judges that are appointed are usually appointed by previously elected executive officials so that judges' philosophy should reflect that of those who nominated them, and that an independent judiciary is a great asset to civil society since special interests are unable to dictate their version of constitutional interpretation with the threat of stopping political donations.

United States examples

The following rulings have been characterized[by whom?] 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.[33][34][35]

Outside the United States

See also: Judicial activism in the European Union, Judicial activism in Canada, and Criticism of the United States Supreme Court

While the term was first coined and is often used in the United States, it has also been applied in other countries, particularly common law jurisdictions.

India

See also: Judicial Activism In India

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 criticized.[36][37][38][39][40][41][42] New York Times author Gardiner Harris sums this up as[43]

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,[44][45] 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,[46] 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."[47]

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.[46] 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.

Recent examples quoted include the order to Delhi Government to convert the Auto rickshaw to CNG,[44] a move believed to have reduced Delhi's erstwhile acute smog problem (it is now argued to be back)[48] and contrasted with that of Beijing.[49]

Israel

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.[50][51][52] 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[53] touches on diverse and controversial public matters.[original research?]

United Kingdom

The 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.[54] Previously, a claim like this would be defined as definitive, but the judges had slowly begun to adopt more of an activist line approach.[55] 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.[56] 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.[57] This number dramatically increased as by 2013, there were 15,594 applications.[58] 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.[59] 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.[60]

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.[61][62][63][64] Brenda Marjorie Hale, Baroness Hale of Richmond, DBE, PC, FBA, 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'.

See also

Notes

  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 2022-02-18. 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. 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 (June 11, 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.
  9. ^ "judicial activism | Definition, Types, Examples, & Facts | Britannica". www.britannica.com.
  10. ^ Kermit Roosevelt, III, The Myth of Judicial Activism: Making Sense of Supreme Court Decisions, Yale University Press, 2008, ISBN 0-300-12691-3, ISBN 978-0-300-12691-4.
  11. ^ Wallace, Chris; Olson, Theodore (August 8, 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, accessed May 14, 2010
  14. ^ Slattery, Elizabeth. "How to Spot Judicial Activism: Three Recent Examples". The Heritage Foundation.
  15. ^ Fallon, Richard (November 1, 2013). "Interpreting Presidential Powers". Duke Law Journal. 63 (2): 347–392.
  16. ^ 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).
  17. ^ Tamanaha, Brian Z. (2010). Beyond the Formalist-Realist Divide: The Role of Politics in Judging. Princeton University Press. ISBN 978-0-691-14279-1.
  18. ^ 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.")
  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 465-66 (2014) SSRN 2310915
  21. ^ 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
  22. ^ Greenhouse 2005, pp. 135–36
  23. ^ The real case of judicial activism Archived 2016-03-07 at the Wayback Machine The Times Herald, June 2, 2009
  24. ^ Dover Intelligent Design Decision Criticized as a Futile Attempt to Censor Science Education, Robert Crowther, Evolution News & Views, Discovery Institute
  25. ^ Mann, Thomas E. (January 26, 2010). "Commentary: Citizens United vs. FEC is an egregious exercise of judicial activism". McClatchy News Service. Archived from the original on March 15, 2010. Retrieved April 29, 2010.
  26. ^ Stone, Geoffrey R. (2012). "Citizens United and Conservative Judicial Activism" (PDF). University of Illinois Law Review. 2012 (2): 485–500.
  27. ^ "Symposium: Judicial activism on marriage causes harm: What does the future hold? - SCOTUSblog". SCOTUSblog. 2015-06-26. Retrieved 2017-04-03.
  28. ^ Marvit, Moshe Z. (2018-02-26). "Opinion | The Consequences of Judicial Activism on the Supreme Court (Published 2018)". The New York Times. ISSN 0362-4331. Retrieved 2020-10-25.
  29. ^ Bruno, Robert. "A Supreme Court ruling for Janus would be judicial activism at its worst". chicagotribune.com. Retrieved 2020-10-25.
  30. ^ Chermerinsky, Edwin (July 9, 2018). "The Supreme Court's Janus ruling was pure judicial activism. Unions, look out". The Sacramento Bee. Retrieved October 25, 2020.
  31. ^ "Supreme Court Rules For DREAMers, Against Trump". NPR. 2020-06-18. Retrieved 2020-12-09.
  32. ^ "Lewis Denounces DACA Ruling as Judicial Activism". LewisForMN. 2020-06-18. Retrieved 2020-12-09.
  33. ^ "Hot Topics: Judicial Activism". fedsoc.org.
  34. ^ "Judicial Activism Bush Style". Rewire News Group. 20 June 2006.
  35. ^ "Untitled". law2.umkc.edu.
  36. ^ "Tyranny Of The Unelect Influencing Judiciary?". legalserviceindia.com.
  37. ^ "judicial Supremacy v. Parliamentary Supremacy in India – Lloyd Law". www.lloydlawcollege.edu.in.
  38. ^ Anant, T. C. A.; Jaivir Singh (2002). "An Economic Analysis of Judicial Activism". Economic and Political Weekly. 37 (43): 4433–4439. JSTOR 4412779 – via JSTOR.
  39. ^ "Opinion | Rana Ayyub: The destruction of India's judicial independence is almost complete". The Washington Post. 2020-03-24. Retrieved 2022-06-11.
  40. ^ Rai, Diva (June 22, 2021). "Indian Judiciary - inducing activism or leading towards overreach".
  41. ^ 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.
  42. ^ https://journals.sas.ac.uk/amicus/article/download/1162/1045/ [bare URL]
  43. ^ Harris, Gardiner (December 11, 2013). "India's Supreme Court Restores an 1861 Law Banning Gay Sex". The New York Times.
  44. ^ a b "Archived copy". Archived from the original on 2016-03-04. Retrieved 2013-12-21.{{cite web}}: CS1 maint: archived copy as title (link)
  45. ^ "Supreme Court of India Cause List". Causelists.nic.in. Archived from the original on 2014-01-19. Retrieved 2013-12-21.
  46. ^ a b "The Constitution Of India". Lawmin.nic.in. Archived from the original on 2012-04-02. Retrieved 2013-12-21.
  47. ^ Singh, Satbir. "Where did the revolution go? The Supreme Court of India & Socio-economic rights since the end of Emergency Rule" – via www.academia.edu. {{cite journal}}: Cite journal requires |journal= (help)
  48. ^ Neha Lalchandani, TNN (2012-11-03). "Delhi enveloped in smog, back to pre-CNG levels". The Times of India. Archived from the original on 2012-11-05. Retrieved 2013-12-21.
  49. ^ "Beijing like Delhi, goes the CNG way!! - Investment News and Commentary from Emerging Markets in Asia". 2point6billion.com. 2007-08-27. Retrieved 2013-12-21.
  50. ^ "Barak-Erez, Daphne --- "Broadening the Scope of Judicial Review in Israel: Between Activism and Restraint" [2009] INJlConLaw 8; (2009) 3 Indian Journal of Constitutional Law 118". www.commonlii.org.
  51. ^ Bender, Ariel L., "The Israeli Constitutionalism: Between Legal Formalism and Judicial Activism"
  52. ^ Stern, Yedidia Z., "The Tal Law: Judicial Activism at its Height," The Israel Democracy Institute, February 28, 2012
  53. ^ "Israeli Supreme Court decisions search - Israeli Lawyers | Israeli Law Firm Golan & Co". Israeli Supreme Court Decisions database. Archived from the original on 2014-05-05. Retrieved 2014-05-15.
  54. ^ "Conway v Rimmer | [1968] AC 910 | United Kingdom House of Lords | Judgment | Law | CaseMine". www.casemine.com. Retrieved 2021-01-22.
  55. ^ Scarman, Leslie (1974). English Law - The New Dimension. London: The Hamlyn Trust. pp. 48–49. ISBN 9780420446909.
  56. ^ "Gina Miller: Who is campaigner behind Brexit court cases?". BBC News. 2019-09-25. Retrieved 2021-01-23.
  57. ^ "Judicial review procedures to be made simpler". The Independent. 2011-10-23. Retrieved 2021-01-22.
  58. ^ "The true statistics behind judicial review's success rates". UK Human Rights Blog. 2015-03-23. Retrieved 2021-01-22.
  59. ^ "Lord Rees-Mogg Loses Challenge to Maastricht Treaty". AP NEWS. Retrieved 2021-01-23.
  60. ^ Scarman, Leslie (1974). English Law - The New Dimension. London: The Hamlyn Trust. pp. 48–52. ISBN 9780420446909.
  61. ^ "Judicial selection in the states". Ballotpedia.
  62. ^ "Lady Hale warns UK not to select judges on basis of political views". the Guardian. December 18, 2019.
  63. ^ "Judges and Parliament". www.judiciary.uk.
  64. ^ "The justice system and the constitution". www.judiciary.uk.

References

Ginsberg, Benjamin, et al. We the People: an Introduction to American Politics. W.W. Norton & Company, 2017.

Further reading

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