Judicial activism


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] It is usually a pejorative term, implying that judges make rulings based on their own political agenda rather than precedent and take advantage of judicial discretion.[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 characterised 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.[citation needed]

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";[8] likewise, the solicitor general under George W. Bush, Theodore Olson, said in an interview on Fox News Sunday, in regards 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."[9] Supreme Court Justice Anthony Kennedy has said that, "An activist court is a court that makes a decision you don't like."[10][11]

Debate


Detractors of judicial activism charge that it usurps the power of the elected branches of government or appointed agencies, damaging the rule of law and democracy.[12] 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" 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."[13] 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 which is not directly subject to the electorate, so that the majority cannot dominate or oppress any particular minority through its elective powers.[14] 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.[15]

Moreover, they argue that the judiciary strikes down both elected and unelected official action, 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 same legislative body 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 their philosophy should reflect that of those who nominated them, that an independent judiciary is a great asset to civil society since special interests are unable to dictate their version of constitutional interpretation with threat of stopping political donations.

United States examples


The following rulings have been characterized[by whom?] as judicial activism.

Outside the United States


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

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.[citation needed] New York Times author Gardiner Harris sums this up as[30]

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,[31][32] 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,[33] 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."[34]

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.[33] This was recognized, and deemed not applicable by the High Court of Singapore in Teo Soh Lung v. Minister for Home Affairs.

Recent examples quoted include the order to Delhi Government to convert the Auto rickshaw to CNG,[31] a move believed to have reduced Delhi's erstwhile acute smog problem (it is now argued to be back)[35] and contrasted with that of Beijing.[36]

Israel

The Israeli approach to judicial activism has transformed significantly in the last three decades, and currently[when?] presents an especially broad version of robust judicial review and intervention.[37][38][39] 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[40] touches on diverse and controversial public matters.

The 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).[41] Previously, a claim like this would be defined as definitive, but the judges had slowly begun to adopt more of an activist line approach.[42] 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.[43] The perceptions of judicial activism derived from the number of applications for judicial review made to the courts. This can be seen throughout the 1980s, where there about 500 applications within a year.[44] This number dramatically increased as by 2013, there were 15,594 applications.[45] This trend has become more frequent as time passes along, possibly pointing to a greater influence in the UK courts against the government. Along side with the amount of applications submitted to the courts, in some instances it has attracted media attention. For instance, in 1993, Jacob Rees-Mogg had challenged the Conservative government to ratify the Maastricht Treaty, which eventually had formed into the European Union.[46] 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 frequent to scrutinise at their own will, and at times, reject government legislation that the deem to be not within balance to the UK constitution and, becoming more visible.[47]

See also


Notes


  1. Wolfe, Christopher (1997). Judicial activism. Rowman & Littlefield Publishers, Inc. ISBN 0-8476-8531-4..
  2. "judicial activism". Oxford Reference.
  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 & Sherwood, The Role of the Supreme Court in American Government and Politics: 1789–1835, 1944, p.209
  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. 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.
  9. Wallace, Chris; Olson, Theodore (August 8, 2010). "Ted Olson on Debate Over Judicial Activism and Same-Sex Marriage". Fox News Sunday. Fox News Channel.
  10. 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
  11. Matt Sedensky, "Justice questions way court nominees are grilled," Associated Press, May 14, 2010, accessed May 14, 2010
  12. 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).
  13. Tamanaha, Brian Z. (2010). Beyond the Formalist-Realist Divide: The Role of Politics in Judging. Princeton University Press. ISBN 978-0-691-14279-1.
  14. Ely, John Hart (1980). Democracy and Distrust. Cambridge: Harvard University Press. chapters 4–6. ISBN 0-674-19636-8.
  15. Evan Zoldan, "Targeted Judicial Activism," 16 Green Bag 2d 465-66 (2014) SSRN 2310915
  16. 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
  17. Greenhouse 2005, pp. 135–36
  18. The real case of judicial activism The Times Herald, June 2, 2009
  19. 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.
  20. Stone, Geoffrey R. (2012). "Citizens United and Conservative Judicial Activism" (PDF). University of Illinois Law Review. 2012 (2): 485–500.
  21. "California Officials React To Proposition 8 Ruling". KRCR-TV. August 4, 2010. Archived from the original on July 13, 2011. Retrieved 2010-08-05. Congressman Wally Herger (R-CA) issued the following statement: 'This is simply another example of judicial activism and legislating from the bench...'
  22. Graves, Bill (August 4, 2010). "California court ruling lifts hopes for Oregon gay marriage supporters". The Oregonian. Retrieved 2010-08-05. It is momentum that concerns the Oregon Family Council, a statewide Christian-based network that helped pass Measure 36, Oregon's constitutional ban on same sex marriage, in 2004. "We think it is judicial activism at its worst," said Tim Nashif, the group's political director.
  23. Donovan, Charles A (August 4, 2010). "Prop. 8 ruling an act of extreme judicial activism". Orange County Register. Retrieved 2010-08-05. Today's decision by a federal district judge in San Francisco striking down state constitutional protections for marriage and inventing a spurious federal constitutional right to same-sex marriage is an example of extreme judicial activism.
  24. "Symposium: Judicial activism on marriage causes harm: What does the future hold? - SCOTUSblog". SCOTUSblog. 2015-06-26. Retrieved 2017-04-03.
  25. 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.
  26. Bruno, Robert. "A Supreme Court ruling for Janus would be judicial activism at its worst". chicagotribune.com. Retrieved 2020-10-25.
  27. 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.
  28. "Supreme Court Rules For DREAMers, Against Trump". NPR. 2020-06-18. Retrieved 2020-12-09.
  29. "Lewis Denounces DACA Ruling as Judicial Activism". LewisForMN. 2020-06-18. Retrieved 2020-12-09.
  30. Harris, Gardiner (December 11, 2013). "India's Supreme Court Restores an 1861 Law Banning Gay Sex". The New York Times.
  31. "Archived copy". Archived from the original on 2016-03-04. Retrieved 2013-12-21.CS1 maint: archived copy as title (link)
  32. "Supreme Court of India Cause List". Causelists.nic.in. Archived from the original on 2014-01-19. Retrieved 2013-12-21.
  33. "The Constitution Of India". Lawmin.nic.in. Archived from the original on 2012-04-02. Retrieved 2013-12-21.
  34. 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 requires |journal= (help)
  35. 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.
  36. "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.
  37. http://www.tau.ac.il/law/barakerez/artmarch2010/38.pdf
  38. "The Tal Law: Judicial Activism at its Height". en.idi.org.il.
  39. http://ccc.uchicago.edu/docs/bendor.pdf
  40. "Archived copy". Archived from the original on 2014-05-05. Retrieved 2014-05-15.CS1 maint: archived copy as title (link) Israeli Supreme Court Decisions database
  41. "Conway v Rimmer | [1968] AC 910 | United Kingdom House of Lords | Judgment | Law | CaseMine". www.casemine.com. Retrieved 2021-01-22.
  42. Scarman, Leslie (1974). English Law - The New Dimension. London: The Hamlyn Trust. pp. 48–49. ISBN 9780420446909.
  43. "Gina Miller: Who is campaigner behind Brexit court cases?". BBC News. 2019-09-25. Retrieved 2021-01-23.
  44. "Judicial review procedures to be made simpler". The Independent. 2011-10-23. Retrieved 2021-01-22.
  45. "The true statistics behind judicial review's success rates". UK Human Rights Blog. 2015-03-23. Retrieved 2021-01-22.
  46. "Lord Rees-Mogg Loses Challenge to Maastricht Treaty". AP NEWS. Retrieved 2021-01-23.
  47. Scarman, Leslie (1974). English Law - The New Dimension. London: The Hamlyn Trust. pp. 48–52. ISBN 9780420446909.

References


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

Further reading


  • Paul O. Carrese, 2003. The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism (Chicago: University of Chicago Press).
  • Duncan Kennedy, 1998. A Critique of Adjudication (Cambridge, MA: Harvard University Press).
  • Carrol D. Kilgore, 1977. Judicial Tyranny: An Inquiry into the Integrity of the Federal Judiciary (Thomas Nelson). ISBN 978-0-8407-4060-1
  • Sterling Harwood, 1996. Judicial Activism: A Restrained Defense (London: Austin & Winfield Publishers), 167pp. ISBN 1-880921-68-5.
  • Christopher Wolfe, 1997. Judicial Activism, 2nd ed. (Totowa, NJ: Rowman & Littfield Publishers, Inc.).
  • Kenneth M. Holland, editor, 1991. Judicial Activism in Comparative Perspective (Palgrave Macmillan).
  • Ronald Dworkin, 1988. Law's Empire (Cambridge, MA: Harvard University Press).
  • Alexander M. Bickel, 1986. The Least Dangerous Branch 2nd ed. (New Haven, CT: Yale University Press).
  • Arthur Selwyn Miller, 1982. Toward Increased Judicial Activism (Greenwood Press).
  • Ronald Dworkin, 1977. Taking Rights Seriously (Cambridge, MA: Harvard University Press).
  • Lino A. Graglia, 1976. Disaster by Decree (Ithaca, NY: Cornell University Press).
  • Michael Rebell and Arthur R. Block, 1982. Educational Policy Making and the Courts: An Empirical Study of Judicial Activism (Chicago: University of Chicago Press).
  • H. L. A. Hart, 1961. The Concept of Law (Oxford: Oxford University Press).
  • Grover, Sonja C. (2020). Judicial Activism and the Democratic Rule of Law: Selected Case Studies. Springer Nature. doi:10.1007/978-3-030-35085-7. ISBN 978-3-030-35085-7.