Judicial activism is a critical term used to describe
judicial rulings that impose a personal biased interpretation by a given court of what a law means as opposed to what a neutral, unbiased observer would naturally interpret a law to mean.
The issue of judicial activism is closely tied to concepts of the
separation of powers within government.
Definition
The term "judicial activism" is frequently used in political debate without definition, which has created some confusion over its precise meaning or meanings. In an effort to clarify the situation, Bradley C. Canon has identified six dimensions along which judge courts may be perceived as activist:
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. 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. 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. It is common for the charge to arise simply because one disagree with a certain ruling regardless of were 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. 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.
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. 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." According to Keenan Kmiec, in a 2004 article in
California Law Review,
Accusations of judicial activism
The Living Constitution as judicial activism
In the U.S., critics 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 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.
Critics 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.
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.
[Bache, Ian and Stephen George (2006). Politics in the European Union, 2nd ed., Oxford: Oxford University Press]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.
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.
The Court can only practice judicial activism to the EU Governments leave room for interpretation in the
treaties.
[Moravcsik, A. (2002) ‘In defense of the democratic deficit: reassessing legitimacy in the European Union’ Journal of Common Market Studies. Vol 40, Issue 4]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.
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.
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.
Ireland accepted the Lisbon treaty in June 2009 under these new terms.
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See also
Rule by judges:
