Judicial activism

Judicial activism refers to judicial rulings suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint.[1] The definition of judicial activism, and which specific decisions are activist, is a controversial political issue, particularly in the United States. The question of judicial activism is closely related to constitutional interpretation, statutory construction, and separation of powers.

Origins of the term

Arthur Schlesinger Jr. introduced the term "judicial activism" in a January 1947 Fortune magazine article titled "The Supreme Court: 1947".[2]

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."[3]

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, John Marshall.[4]

Definitions

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."[5]

Political science professor Bradley Canon has posited six dimensions along which judge courts may be perceived as activist:[6] 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.

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";[7] 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."[8] Supreme Court Justice Anthony Kennedy has said that, "An activist court is a court that makes a decision you don't like."[9][10]

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.[11] 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."[12]

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.[13] 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.[14]

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.

Examples

The following are cited as examples of judicial activism:

By geography

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. The Public Interest Litigation was 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. New York Times author Gardiner Harris sums this up as[22]

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,[23][24] 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,[25] 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."[26]

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.[25] This was recognized, and deemed not applicable 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,[23] a move believed to have reduced Delhi's erstwhile acute smog problem (it is now argued to be back)[27] and contrasted with Beijing's.[28]

Israel

The Israeli approach to judicial activism has transformed significantly in the last 3 decades, and currently presents an especially broad version of robust judicial review and intervention.[29][30][31] 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[32] touches on diverse and controversial public matters.

See also

Notes

  1. ↑ Christopher Wolfe, Judicial activism, Rowman & Littlefield, ISBN 0-8476-8531-4.
  2. ↑ Kmiec, Keenan D. (2004). "The Origin and Current Meanings of 'Judicial Activism'". Cal. L. Rev. 92: 1441, 1447. 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.
  3. ↑ "An Intellectual History of Judicial Activism" Craig Green, August 2008, p. 4
  4. ↑ Haines & Sherwood, The Role of the Supreme Court in American Government and Politics: 1789–1835, 1944, p.209
  5. ↑ As quoted in "Takings Clause Jurisprudence: Muddled, Perhaps; Judicial Activism, No" DF O'Scannlain, Geo. JL & Pub. Pol'y, 2002
  6. ↑ Bradley C. Canon – "Defining the Dimensions of Judicial Activism," Judicature, 66.6, 1983
  7. ↑ 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.
  8. ↑ Wallace, Chris; Olson, Theodore (August 8, 2010). "Ted Olson on Debate Over Judicial Activism and Same-Sex Marriage". Fox News Sunday (Fox News Channel).
  9. ↑ 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
  10. ↑ Matt Sedensky, "Justice questions way court nominees are grilled," Associated Press, May 14, 2010, accessed May 14, 2010
  11. ↑ 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).
  12. ↑ Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging, Princeton University Press, 2010
  13. ↑ John Hart Ely, Democracy and Distrust. Cambridge: Harvard University Press, 1980, chapters 4–6.
  14. ↑ Evan Zoldan, "Targeted Judicial Activism," 16 Green Bag 2d 465-66 (2014)
  15. ↑ 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 Albany Law Review, 2005
  16. ↑ Roe v. Wade a classic example of judicial activism The Daily Campus, September 12, 2008
  17. ↑ The real case of judicial activism The Times Herald, June 2, 2009
  18. ↑ Mann, Thomas E. (January 26, 2010). "Commentary: Citizens United vs. FEC is an egregious exercise of judicial activism". McClatchy News Service. Retrieved 2010-04-29.
  19. ↑ Stone, Geoffrey R. (2012). "Citizens United and Conservative Judicial Activism" (PDF). University of Illinois Law Review 2012 (2): 485–500.
  20. ↑ "California Officials React To Proposition 8 Ruling". KRCR-TV. August 4, 2010. Retrieved 2010-08-05. Congressman Wally Herger issued a statement, "This is simply another example of judicial activism and legislating from the bench..."
    Graves, Bill (August 4, 2010). "California court ruling lifts hopes for Oregon gay marriage supporters". The Oregonian. Retrieved 2010-08-05. Tim Nashif, political director of the Oregon Family Council, "We think it is judicial activism at its worst."
    Donovan, Charles A (August 4, 2010). "Prop. 8 ruling an act of extreme judicial activism". Orange County Register. Retrieved 2010-08-05. Charles A. Donovan of the Heritage Foundation, "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."
  21. ↑ Jon Boone (June 19, 2012). "Pakistan's prime minister Yousuf Raza Gilani disqualified by supreme court". The Guardian (London). Retrieved 2013-12-21.
  22. ↑ Harris, Gardiner (December 11, 2013). "India's Supreme Court Restores an 1861 Law Banning Gay Sex". The New York Times.
  23. 1 2 http://www.kankyo.metro.tokyo.jp/policy_others/attachement/Delhi-note%20on%20change%20over.doc
  24. ↑ "Supreme Court of India Cause List". Causelists.nic.in. Retrieved 2013-12-21.
  25. 1 2 "The Constitution Of India". Lawmin.nic.in. Retrieved 2013-12-21.
  26. ↑ http://www.academia.edu/1092288/Where_did_the_revolution_go_The_Supreme_Court_of_India_and_Socio-economic_rights_since_the_end_of_Emergency_Rule
  27. ↑ Neha Lalchandani, TNN (2012-11-03). "Delhi enveloped in smog, back to pre-CNG levels". The Times Of India. Retrieved 2013-12-21.
  28. ↑ "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.
  29. ↑ http://www.tau.ac.il/law/barakerez/artmarch2010/38.pdf
  30. ↑ http://en.idi.org.il/analysis/articles/judicial-activism-at-its-height
  31. ↑ http://ccc.uchicago.edu/docs/bendor.pdf
  32. ↑ http://www.lawofisrael.com/israeli-supreme-court-decisions/ Israeli Supreme Court Decisions database

References

Further reading

Legal books

  • 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
  • 105th Cong., I @ Sess. I, 1997. Judicial Activism: Defining the Problem and its Impact: Testimony before the Subcommittee on the Constitution, Federalism & Property Rights (U.S. G.P.O., Supt. of Docs., Congressional Sales Office Publishers), 205pp. ISBN 0-16-055917-0
  • 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).

Popular books

  • Kermit Roosevelt, October 15, 2006. The Myth of Judicial Activism: Making Sense of Supreme Court Decisions (Yale University Press Publishers), 272pp. ISBN 0-300-11468-0
  • James B. Kelly, July 30, 2006. Governing With the Charter: Legislative And Judicial Activism And Framer's Intent (Law and Society Series) (UBC Press Publishers), 336pp. ISBN 0-7748-1212-5
  • Rory Leishman, May 2006. Against Judicial Activism: The Decline of Freedom And Democracy in Canada (McGill-Queen's University Press Publishers), 310pp. ISBN 0-7735-3054-1
  • Mark Sutherland, 2005. Judicial Tyranny: The New Kings of America? ISBN 0-9753455-6-7
  • Mark R. Levin, 2005. Men In Black: How the Supreme Court Is Destroying America ISBN 0-89526-050-6
  • S.Hrg. 108–717, 2004. Judicial Activism vs. Democracy: What are the National Implications of the Massachusetts Goodridge Decision and the Judicial Invalidation of Traditional Marriage Laws? (U.S. G.P.O., Supt. of Docs., Congressional Sales Office Publishers), 263pp. Serial No. J-108-59. GPO Stock No. 552-070-32572-7, ISBN 0-16-074535-7
  • Phyllis Schlafly, 2004. The Supremacists: The Tyranny Of Judges And How To Stop It ISBN 1-890626-55-4
  • S. P. Sathe, December 2003. Judicial Activism in India (Oxford University Press Publishers), 406pp. ISBN 0-19-566823-5
  • David Barton, 2003. Restraining Judicial Activism (Wallbuilder Press). ISBN 1-932225-14-5
  • Robert Bork, 2003. Coercing Virtue: The Worldwide Rule of Judges (AEI Press) ISBN 0-8447-4162-0
  • Stephen P. Powers and Stanley Rothman, 2002. The Least Dangerous Branch? Consequences of Judicial Activism (Praeger Paperbacks). ISBN 0-275-97536-3
  • Herman Schwartz, editor, 2002. The Rehnquist Court: Judicial Activism on the Right ISBN 0-8090-8073-7.
  • David Gwynn Morgan, 2001. A Judgment Too Far? Judicial Activism and the Constitution (Cork University Press). ISBN 1-85918-229-1
  • Bradley C. Canon and Charles A. Johnson, 1998. Judicial Policies: Implementation and Impact 2nd ed. (Congressional Quarterly Books).
  • William P. Murchison, 1982. Judicial Politics Gone Wild: A Case Study of Judicial Activism in Texas (Washington Legal Foundation), 11pp
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