Judicial activism


Judicial activism is a judicial philosophy holding that courts can and should go beyond the applicable law to consider broader societal implications of their decisions. It is sometimes used as an antonym of judicial restraint. The term usually implies that judges make rulings based on their own views rather than on precedent. 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

introduced the term "judicial activism" in a January 1947 Fortune magazine article titled "The Supreme Court: 1947".
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."
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.

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."
Political science professor Bradley Canon has posited six dimensions along which judges or courts may be perceived as activist: 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". Roosevelt defines judicial activism as "an approach to the exercise of judicial review, or a description of a particular judicial decision, in which a judge is generally considered more willing to decide constitutional issues and to invalidate legislative or executive actions."; likewise, the solicitor general under George W. Bush, Theodore Olson, said in an interview on Fox News Sunday, with regard 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." Supreme Court Justice Anthony Kennedy said that, "An activist court is a court that makes a decision you don't like."

Indeterminacy debate in legal theory

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. Sunset provisions can limit the interpretation uncertainties in the law.
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." 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 and placing bounds on that flexibility.
Critical legal studies argues that political argument and legal argument cannot be entirely separated.

Judicial independence

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. 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.
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."

Judicial accountability

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. One opponent of judicial activism wrote, "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." Advocates of minimalist definitions of democracy focus on electoral accountability as source of political legitimacy, while maximalist definitions of democracy, include additional values typically enshrined in the constitutions. Parliamentary sovereignty views legislative bodies as supreme over judiciary. Constitutionalism views the constitution as supreme.

By country

United States

The following rulings have been characterized as judicial activism.
Some US Presidents have also commented on the idea. When President George W. Bush announced his first nominations for the federal bench, he declared:

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. Judges are also charged to impartially apply the law as it is written.
Canada has a legal system that is derived from the British system of common law. 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. 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.
Former Chief Justice of the Supreme Court of Canada Beverley McLachlin has stated that:

European Union

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, they leave room for the Court to interpret them 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 get a compromise, governments agree to leave a decision on an issue to the Court.
The Court can only practice judicial activism to the extent the EU Governments leave room for interpretation in the treaties.
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.
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 member states of the European Union to make written guarantees that the EU will under no circumstances interfere with Irish abortion, taxation or military neutrality.
Ireland voted on the Lisbon Treaty a second time in 2009, with a 67.1% majority voting Yes to the treaty.