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] 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
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
The examples and perspective in this article deal primarily with the United States and do not represent a worldwide view of the subject. (May 2017) |
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.
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
The examples and perspective in this article deal primarily with the United States and do not represent a worldwide view of the subject. (May 2017) |
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. Critics of judicial activism often purport to follow a conservative agenda, though United States issues for several decades have seen extreme conservative activist rulings delivered to advance conservative economic and social causes.
United States examples
The following rulings have been characterized[by whom?] as judicial activism.
- desegregation of public schools.[21]
- Roe v. Wade – 1973 Supreme Court ruling creating the constitutional right to an abortion.[22]
- recount of ballots in Florida and as a result Bush was chosen as president.[23]
- Obergefell v. Hodges – 2015 Supreme Court decision declaring same-sex marriage as a right guaranteed under the Due Process Clause and the Fourteenth Amendment.[26]
- Janus v. AFSCME – a 2018 Supreme Court decision addressing whether unions can require dues from all workers who benefit from collective bargaining agreements. The decision overturned the 41-year-old precedent of Abood v. Detroit Board of Education.[27][28][29]
- Department of Homeland Security v. Regents of the University of California – a 2020 Supreme Court decision addressing whether the Department of Homeland Security under President Donald Trump had the authority to dismantle the Deferred Action for Childhood Arrivals program initiated by Executive Order under former President Barack Obama.[30][31]
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.[32][33][34]
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.
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]
Such accusations often arise in response to rulings involving the
The judgment
European Union
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In the
When theThe Court can only practice judicial activism to the extent the EU Governments leave room for interpretation in the
The Court makes important rulings that set the agenda for further
In the
India
India has a recent history of judicial activism, originating after
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,[46][47] 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
Israel
You can help expand this section with text translated from the corresponding article in Hebrew. (January 2023) Click [show] for important translation instructions.
|
This section needs expansion. You can help by adding to it. (January 2023) |
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.[53][54][54] 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[55] touches on diverse and controversial public matters.[original research?]
United Kingdom
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
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.[63][64][65][66] 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
Notes
- ISBN 0-8476-8531-4.
- ^ "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.
- comprised a middle group.
- ^ "An Intellectual History of Judicial Activism" Craig Green, August 2008, p. 4
- ^ Haines, Charles Grove (1944). "The Role of the Supreme Court in American Government and Politics 1789-1835". University of California Press – via Google Books.
- ^ As quoted in "Takings Clause Jurisprudence: Muddled, Perhaps; Judicial Activism, No" DF O'Scannlain, Geo. JL & Pub. Pol'y, 2002
- ^ Canon, Bradley C. (1983). "Defining the Dimensions of Judicial Activism". Judicature. 66 (6): 236–247.
- ^ "David Strauss Looks at History and Future of the "Activist" Supreme Court | University of Chicago Law School". www.law.uchicago.edu. 12 July 2010.
- ^ "judicial activism | Definition, Types, Examples, & Facts | Britannica". www.britannica.com. 29 December 2023.
- ISBN 978-0-300-12691-4.
- Fox News Channel.
- ISBN 0-8476-8992-1
- ^ Matt Sedensky, "Justice questions way court nominees are grilled," Associated Press, May 14, 2010, Retrieved 14 May 2010
- ^ Slattery, Elizabeth. "How to Spot Judicial Activism: Three Recent Examples". The Heritage Foundation.
- ^ Fallon, Richard (1 November 2013). "Interpreting Presidential Powers". Duke Law Journal. 63 (2): 347–392.
- ^ 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).
- ISBN 978-0-691-14279-1.
- ^ 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.")
- ISBN 0-674-19636-8.
- SSRN 2310915
- ^ 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
- ^ Greenhouse 2005, pp. 135–36
- ^ The real case of judicial activism Archived 2016-03-07 at the Wayback Machine The Times Herald, June 2, 2009
- McClatchy News Service. Archived from the originalon 15 March 2010. Retrieved 29 April 2010.
- ^ Stone, Geoffrey R. (2012). "Citizens United and Conservative Judicial Activism" (PDF). University of Illinois Law Review. 2012 (2): 485–500.
- ^ "Symposium: Judicial activism on marriage causes harm: What does the future hold? - SCOTUSblog". SCOTUSblog. 26 June 2015. Retrieved 3 April 2017.
- ISSN 0362-4331. Retrieved 25 October 2020.
- ^ Bruno, Robert (21 May 2018). "A Supreme Court ruling for Janus would be judicial activism at its worst". chicagotribune.com. Retrieved 25 October 2020.
- ^ 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.
- ^ "Supreme Court Rules For DREAMers, Against Trump". NPR. 18 June 2020. Retrieved 9 December 2020.
- ^ "Lewis Denounces DACA Ruling as Judicial Activism". LewisForMN. 18 June 2020. Retrieved 9 December 2020.
- ^ "Hot Topics: Judicial Activism". fedsoc.org. July 2003.
- ^ "Judicial Activism Bush Style". Rewire News Group. 20 June 2006.
- ^ "Untitled". law2.umkc.edu.
- ^ EUabc – Cassis de Djion case: http://en.euabc.com/word/140
- ^ Bache & George 2006.
- ^ a b Moravcsik 2002.
- ^ Irish secure concessions on Lisbon Treaty: http://www.europeanvoice.com/article/2008/12/irish-secure-concessions-on-lisbon-treaty/63409.aspx
- ^ "Tyranny Of The Unelect Influencing Judiciary?". legalserviceindia.com.
- ^ "judicial Supremacy v. Parliamentary Supremacy in India – Lloyd Law". www.lloydlawcollege.edu.in.
- JSTOR 4412779– via JSTOR.
- ^ "Opinion | Rana Ayyub: The destruction of India's judicial independence is almost complete". The Washington Post. 24 March 2020. Retrieved 11 June 2022.
- ^ Rai, Diva (22 June 2021). "Indian Judiciary - inducing activism or leading towards overreach".
- JSTOR 10.3138/j.ctt1whm97c.12.
- ^ Harris, Gardiner (11 December 2013). "India's Supreme Court Restores an 1861 Law Banning Gay Sex". The New York Times.
- ^ 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.
- ^ "Supreme Court of India Cause List". Causelists.nic.in. Archived from the original on 19 January 2014. Retrieved 21 December 2013.
- ^ a b "The Constitution Of India". Lawmin.nic.in. Archived from the original on 2 April 2012. Retrieved 21 December 2013.
- ^ 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.
- ^ T. R. Andhyarujina, "Disturbing trends in judicial activism", The Hindu, 6 August 2012 Retrieved 21 December 2019
- ^ 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.
- ^ "Beijing like Delhi, goes the CNG way!! - Investment News and Commentary from Emerging Markets in Asia". 2point6billion.com. 27 August 2007. Retrieved 21 December 2013.
- ^ "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.
- ^ a b "The Tal Law: Judicial Activism at its Height". en.idi.org.il. 20 April 2012. Retrieved 20 April 2024.
- ^ "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.
- ^ "Conway v Rimmer | [1968] AC 910 | United Kingdom House of Lords | Judgment | Law | CaseMine". www.casemine.com. Retrieved 22 January 2021.
- ISBN 9780420446909.
- ^ "Gina Miller: Who is campaigner behind Brexit court cases?". BBC News. 25 September 2019. Retrieved 23 January 2021.
- ^ "Judicial review procedures to be made simpler". The Independent. 23 October 2011. Retrieved 22 January 2021.
- ^ "The true statistics behind judicial review's success rates". UK Human Rights Blog. 23 March 2015. Retrieved 22 January 2021.
- ^ "Lord Rees-Mogg Loses Challenge to Maastricht Treaty". AP NEWS. Retrieved 23 January 2021.
- ISBN 9780420446909.
- ^ "Judicial selection in the states". Ballotpedia.
- ^ "Lady Hale warns UK not to select judges on basis of political views". the Guardian. 18 December 2019.
- ^ "Judges and Parliament". www.judiciary.uk.
- ^ "The justice system and the constitution". www.judiciary.uk.
References
- Merriam-Webster's Dictionary of Law (1996), Merriam-Webster. ISBN 0-87779-604-1
- Bache, Ian; George, Stephen (2006). Politics in the European Union (2 ed.). Oxford: Oxford University Press.
- Bryan A. Garner (1999). Black's Law Dictionary, 8th Edition. West Group. ISBN 0-314-15199-0.
- ISBN 978-0-8050-7791-9.
- Ginsberg, Benjamin, et al. We the People: an Introduction to American Politics. W.W. Norton & Company, 2017.
- Moravcsik, A. (2002). "In defense of the democratic deficit: reassessing legitimacy in the European Union". Journal of Common Market Studies. 40 (4). S2CID 153441715.
Further reading
- Grover, Sonja C. (2020). Judicial Activism and the Democratic Rule of Law: Selected Case Studies. Springer Nature. S2CID 213018800.
- ISBN 0-300-11468-0
- ISBN 0-7748-1212-5
- ISBN 0-7735-3054-1