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Judicial activism

 
US Supreme Court: Judicial Activism
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The charge that judges are going beyond their appropriate powers and engaging in making law and not merely interpreting it. Against this position is placed the ideal of judicial restraint, which counsels judges to resist the temptation to influence public policy through their decisions and decrees.

Judicial activism is not prisoner to any particular ideological or political viewpoint; it can be conservative as well as liberal. A long period of American history was characterized by conservative judicial activism, by a Supreme Court unwilling to allow the states or Congress to pass legislation that would regulate social or economic affairs. Typically such legislation—laws governing child labor, workers' hours, and so forth—would be invalidated as violations of the Constitution's Commerce Clause or Contracts Clause or of the judicially created doctrine of “liberty of contract” under the Due Process Clause of the Fourteenth Amendment (see Contract, Freedom of). The best‐known example of conservative judicial activism is Lochner v. New York (1905), a case in which the Court invalidated New York's law regulating the hours bakers could work as a violation of “liberty of contract,” a part of the doctrine of substantive due process under the Fourteenth Amendment.

More recently the Court has been subject to criticism that it is engaging in liberal activism. This has been especially the case since the advent of the Warren Court and the revolution that it wrought in civil liberties; but the charge has continued through the Burger Court and into the Rehnquist Court. The argument is that in the name of expanding the “rights” a majority of the justices find agreeable, the Court is twisting the Constitution by disregarding the original meaning of the Due Process and Equal Protection Clauses in order to reach desired results (see Original Intent). Probably the best‐known example of liberal activism is Roe v. Wade (1973), in which the Court struck down restrictive abortion laws as violating the “right to privacy” it had previously found inherent in the Due Process Clause of the Fourteenth Amendment.

What practitioners of liberal and conservative activism have in common is their willingness, at least as perceived by their opponents, to abandon the literal words of the Constitution in pursuit of what the Supreme Court considers to be the just or right or reasonable course of action, whether that be the right of employers to set whatever conditions they see fit for their employees or the right of a woman to abort a fetus. In both instances critics of judicial activism charge that such decisions are properly left under the Constitution to the legislative power of the states.

The distinction between judicial activism and judicial restraint is closely related to the distinction between interpretivism and noninterpretivism and the question of whether it is ever appropriate for judges to import new meaning into the old words of the Constitution.

A campaign against judicial activism became a hallmark of presidencies as ideologically diverse as those of Franklin D. Roosevelt, Richard M. Nixon, and Ronald Reagan.

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See also Constitutional Interpretation; Judicial Self‐Restraint

Bibliography

  • Raoul Berger, Government by Judiciary (1977).
  • Alexander M. Bickel, The Least Dangerous Branch (1962)

— Gary McDowell

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Political Dictionary: judicial activism\judicial restraint
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Alternative judicial philosophies in the United States. Those who subscribe to judicial restraint contend that the role of judges should be scrupulously limited; it is their job merely to say what the law is, leaving the business of law-making where it properly belongs, with legislators and executives. Under no circumstances, moreover, should judges allow their personal political values and policy agendas to colour their judicial opinions. This view holds that the ‘original intent’ of the authors of the Constitution and its amendments is knowable, and must guide the courts.

For those who adhere to these views, typically in recent years conservative Republicans, the judicial activism of the United States Supreme Court led by Earl Warren between 1953 and 1969 was an outrage. By a series of intensely controversial decisions concerning matters such as segregation in education, legislative reapportionment, and the rights of those suspected of crimes, the Warren Court effectively made public policy in a number of sensitive areas. In so doing, it is charged, the Court violated both the separation of powers and federalism and wilfully inserted its political values into judicial decisions.

Presidents favouring judicial restraint such as Richard Nixon, Ronald Reagan, and George Bush Sr, have attempted to counter these developments by trying to appoint ‘strict constructionists’ to the federal bench, although they did not always distinguish sufficiently between judicial restraint and political conservatism. Strict constructionists believe that in interpreting the Constitution, judges should be bound by ‘original intent’. Taken to extremes this position presents a number of difficulties. It is not at all easy to establish what the intentions of the drafters were and, in any case, the Constitution necessarily offers only an outline, designed more than two centuries ago, for a far smaller and profoundly different society. To cling to the intent of the framers of the Constitution is to deny the possibility of constitutional development; the essential updating that an antique instrument surely requires. And yet if judicial activism were to become rampant the Constitution would ultimately lose all meaning. Some strict constructionists can be surprisingly loose when they want to achieve a politically desired result. This is the serious charge against the Court majority that, by one vote in Bush v. Gore (2000) stopped the vote counts in Florida and thereby handed the presidency to George W. Bush.

— David Mervin/Iain McLean

Law Dictionary: Judicial Activism
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The theory of judicial behavior that advocates basing decisions not on the judicial precedent but on achieving what the court perceives to be for the public welfare, or what the court determines to be fair and just on the facts before it. Compare judicial restraint.

Wikipedia: Judicial activism
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Judicial activism is a critical term used by some to describe judicial rulings that they feel are based more upon the judge's personal bias than by existing law. Judicial restraint is sometimes used to refer to the opposite of judicial activism.

The issue of judicial activism is closely tied to concepts of the separation of powers within government.

Contents

Definition

The term "judicial activism" is frequently used in political debate without definition, which has created some confusion over its precise meaning or meanings.

1. Majoritarianism- This dimension takes into account the degree to which policies adopted through the democratic process are judicially overturned.
2. Interpretive stability- This dimension takes into account the degree to which court decisions alter earlier decisions, doctrines, or constitutional interpretations.
3. Interpretive fidelity- This dimension takes into account the degree to which constitutional provisions are interpreted contrary to the clear intentions of their drafters, or the clear implications of the language used in the provision. (See also Judicial interpretation)
4. Substance/democratic process- This dimension takes into account the degree to which judicial decisions make substantive policy, as opposed to acting to preserve the democratic political process.
5. Specificity of policy- This dimension takes into account the degree to which a judicial decision establishes policy itself, as opposed to leaving discretion to other agencies.
6. Availability of an alternate policymaker- This dimension takes into account the degree to which a judicial decision supersedes or inhibits serious consideration of the same problem by other government agencies.

Debate

Detractors of judicial activism charge that it usurps the power of the elected branches of government or appointed agencies , thereby damaging the rule of law and democracy.[1] They argue that an unelected or elected judicial branch has no legitimate grounds to overrule policy choices of duly elected or appointed representatives, in the absence of a real conflict with the constitution.[citation needed] In some instances, government regulation by appointed officers in government agencies are overturned by elected judges.

Defenders of judicial prerogatives say that many cases of so called "judicial activism" merely exemplify judicial review, and that courts must uphold existing laws and strike down any statute that violates a higher law. They say that it is the duty of courts to protect minority rights and to uphold the law, notwithstanding the political sentiments of the day, and that constitutional democracy is far more than just transient majority rule.[citation needed] It is common for the charge to arise simply because one disagree with a certain ruling regardless of where the majority at the moment stands.

However, detractors of judicial activism retort that neither democracy nor the rule of law can exist when the law is merely what judges presently say it should be.[citation needed] Defenders counterclaim that indeed this is precisely what the role of the judiciary is , namely to interpret the law. Detractors argue that the discretion of judges must be limited e.g. by the intentions of lawmakers and appointed or elected government officers , or else any group of people engaged in any behavior could become a judicially protected minority, and any law could be subverted by the predilections of elected or appointed judges.[citation needed]

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.[2] Moreover, they argue that the judiciary strikes down both elected and unelected official action, that in some instances acts of legislative bodies reflect 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, that 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 corporations and the wealthy are unable to dictate their version of constitutional interpretation with threat of stopping political donations.

For information about judicial activism in Canada, please see Judicial activism in Canada.

Origins

Arthur Schlesinger Jr. introduced the term "judicial activism" to the public in a January 1947 Fortune magazine article titled "The Supreme Court: 1947."[3] According to Keenan Kmiec, in a 2004 article in California Law Review,

“ 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] ”

Accusations of judicial activism

 This article contains weasel words, vague phrasing that often accompanies biased or unverifiable information. Such statements should be clarified or removed. (January 2009)

The Living Constitution as judicial activism

In the U.S., critics[who?] of the concept of a living Constitution approach to judicial philosophy argue it is necessarily activist. They argue that the concept endorses any ruling, so long as the judge can argue that it helps the Constitution to grow and evolve. Critics[who?] say that this can violate a judge's sworn allegiance to uphold the Constitution, because, in effect, it encourages judges to write their own Constitutions. Furthermore, they argue that the concept leads to unpredictable rulings, making it impossible to obey the law (as one cannot determine what the law will be before one acts.) One possible outcome of this confusion is the threat of frivolous lawsuits.[5]

Critics[who?] of the concept also argue that it violates the principle of separation of powers. They say that because the purpose of the judiciary is to interpret existing laws and policies, any action that is not done strictly in accordance with existing law must be activism. Indeed, they continue, the legislative branch is explicitly empowered by the Constitution to make law, and the Constitution deliberately has an amendment process (involving the legislature and not the judiciary.) Consequently, any change to the laws or the Constitution outside this framework is itself illegal.[citation needed]

Supporters of the concept, however, argue that to deny that the Constitution is a living, breathing document is to deny reality. Each and every act of trying to determine what the Constitution means, these supporters argue, is an act of interpretation. The best we can do is to acknowledge this reality and in this way avoid hiding politically conservative understandings of the Constitution under the cloak of objectivity.

Judicial Activism in the European Union

Main article: Judicial activism in the European Union

The European Court of Justice has historically been an driver of integration in the EU by performing judicial activism.[6]

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.[7] When the treaties are unclear it leaves room for the Court to interpret it 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 compromise governments agree to leave a decision on an issue to the Court.[6]

The Court can only practice judicial activism to the EU Governments leave room for interpretation in the treaties.[8] 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.[8] The most recent case of judicial activism of the European Court of Justice is the Metock case which determined that the strict Danish and Irish immigration laws conflict with EU laws.[9]

Treaty of Lisbon

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 EU countries to make written guarantees that the EU will under no circumstances interfere with Irish abortion, taxation or military neutrality.[10] Ireland accepted the Lisbon treaty in June 2009 under these new terms.

See also

Rule by judges:

References

  1. ^ See, for example, Justice Antonin Scalia's dissent in Romer v. Evans[1]
  2. ^ John Hart Ely, Democracy and Distrust. Cambridge: Harvard University Press, 1980, chapters 4-6.
  3. ^ Keenan Kmiec in a 2004 California Law Review article
  4. ^ Keenan D. Kmiec, The Origin and Current Meanings of "Judicial Activism," 92 Cal. L. Rev. 1441, 1447 (2004).[2]
  5. ^ Townhall.com
  6. ^ a b Bache, Ian and Stephen George (2006). Politics in the European Union, 2nd ed., Oxford: Oxford University Press
  7. ^ EUabc – Cassis de Djion case: http://en.euabc.com/word/140
  8. ^ a b Moravcsik, A. (2002) ‘In defense of the democratic deficit: reassessing legitimacy in the European Union’ Journal of Common Market Studies. Vol 40, Issue 4
  9. ^ Article: Metock case brings down Danish immigration laws http://www.brusselsjournal.com/node/3457
  10. ^ Irish secure concessions on Lisbon Treaty: http://www.europeanvoice.com/article/2008/12/irish-secure-concessions-on-lisbon-treaty/63409.aspx

Sources

  • Merriam-Webster's Dictionary of Law (1996), Merriam-Webster. ISBN 0-87779-604-1
  • Bryan A. Garner (1999). Black's Law Dictionary, 8th Edition. West Group. ISBN 0-314-15199-0. 

Books

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 978-0840740601
  • 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).

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