Judicial activism

Judicial activism is the judicial philosophy that the courts can and should go beyond the words of the constitution or a statute to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint.[1] 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 constitutional interpretation, statutory construction, and separation of powers.

Etymology

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 Chief Justice John Marshall.[4]

Definitions

A survey of judicial review in practice during the last three decades shows that 'Judicial Activism' has characterised the decisions of the Supreme Court at different times.

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] 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 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.

United States examples

The following rulings have been characterized as judicial activism.

Brown v. Board of Education – 1954 Supreme Court ruling ordering the desegregation of public schools.[15]
Roe v. Wade - 1973 Supreme Court ruling creating the constitutional right to an abortion.[16]
Bush v. Gore – The United States Supreme Court case between the major-party candidates in the 2000 presidential election, George W. Bush and Al Gore. The justices voted 5–4 to halt the recount of ballots in Florida and, as a result, George Bush was chosen as president.[17]
District of Columbia v. Heller - 2008 Supreme Court decision affirming that the Second Amendment protects an individual right, unrelated to military service, to keep and bear arms.[18]
Citizens United v. Federal Election Commission – 2010 Supreme Court decision declaring Congressionally enacted limitations on corporate political spending and transparency as unconstitutional restrictions on free speech.[19][20]
Hollingsworth v. Perry – 2013 decision by federal judge Vaughn R. Walker overturning California's constitutional amendment to ban same-sex marriage.[21]
Obergefell v. Hodges – 2015 Supreme Court decision declaring same-sex marriage as a right guaranteed under the Due Process Clause and the Fourteenth Amendment.[22]

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.

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. Public Interest Litigation was thus 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[23]

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,[24][25] 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,[26] 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."[27]

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.[26] This was recognized, and deemed not applicable by 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,[24] a move believed to have reduced Delhi's erstwhile acute smog problem (it is now argued to be back)[28] and contrasted with that of Beijing.[29]

Israel

The Israeli approach to judicial activism has transformed significantly in the last three decades, and currently presents an especially broad version of robust judicial review and intervention.[30][31][32] 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[33] touches on diverse and controversial public matters.

gollark: Fun!

gollark: You could argue that this makes the paradox also infohazardous since discussion of it means predictions will be more accurate and you lose some ability to choose.

gollark: Except we don't need prediction now, you could just data mine the response to this off discord in theory.

gollark: Probably.

gollark: If you use sufficiently complex methods to choose boxes, the simulator has to basically simulate the entire universe and thus the simulation is basically "real" (depending on your philosophical outlook).

Notes

Wolfe, Christopher (1997). Judicial activism. Rowman & Littlefield Publishers, Inc. ISBN 0-8476-8531-4..
Kmiec, Keenan D. (2004). "The Origin and Current Meanings of 'Judicial Activism'". Cal. L. Rev. 92 (5): 1441–1477. doi:10.2307/3481421. JSTOR 3481421. 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.
"An Intellectual History of Judicial Activism" Craig Green, August 2008, p. 4
Haines & Sherwood, The Role of the Supreme Court in American Government and Politics: 1789–1835, 1944, p.209
As quoted in "Takings Clause Jurisprudence: Muddled, Perhaps; Judicial Activism, No" DF O'Scannlain, Geo. JL & Pub. Pol'y, 2002
Bradley C. Canon – "Defining the Dimensions of Judicial Activism," Judicature, 66.6, 1983
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.
Wallace, Chris; Olson, Theodore (August 8, 2010). "Ted Olson on Debate Over Judicial Activism and Same-Sex Marriage". Fox News Sunday. Fox News Channel.
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
Matt Sedensky, "Justice questions way court nominees are grilled," Associated Press, May 14, 2010, accessed May 14, 2010
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).
Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging, Princeton University Press, 2010
John Hart Ely, Democracy and Distrust. Cambridge: Harvard University Press, 1980, chapters 4–6.
Evan Zoldan, "Targeted Judicial Activism," 16 Green Bag 2d 465-66 (2014)
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 The Times Herald, June 2, 2009
Wilkinson, J. Harvie (2009). "Of Guns, Abortions, and the Unraveling Rule of Law". Virginia Law Review. 95 (2): 253. SSRN 1265118.
Mann, Thomas E. (January 26, 2010). "Commentary: Citizens United vs. FEC is an egregious exercise of judicial activism". McClatchy News Service. Archived from the original on March 15, 2010. Retrieved April 29, 2010.
Stone, Geoffrey R. (2012). "Citizens United and Conservative Judicial Activism" (PDF). University of Illinois Law Review. 2012 (2): 485–500.
"California Officials React To Proposition 8 Ruling". KRCR-TV. August 4, 2010. Archived from the original on July 13, 2011. 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."
"Symposium: Judicial activism on marriage causes harm: What does the future hold? - SCOTUSblog". SCOTUSblog. 2015-06-26. Retrieved 2017-04-03.
Harris, Gardiner (December 11, 2013). "India's Supreme Court Restores an 1861 Law Banning Gay Sex". The New York Times.
"Archived copy". Archived from the original on 2016-03-04. Retrieved 2013-12-21.CS1 maint: archived copy as title (link)
"Supreme Court of India Cause List". Causelists.nic.in. Archived from the original on 2014-01-19. Retrieved 2013-12-21.
"The Constitution Of India". Lawmin.nic.in. Archived from the original on 2012-04-02. Retrieved 2013-12-21.
Singh, Satbir. "Where did the revolution go? The Supreme Court of India & Socio-economic rights since the end of Emergency Rule" – via www.academia.edu. Cite journal requires |journal= (help)
Neha Lalchandani, TNN (2012-11-03). "Delhi enveloped in smog, back to pre-CNG levels". The Times Of India. Retrieved 2013-12-21.
"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.
http://www.tau.ac.il/law/barakerez/artmarch2010/38.pdf
"The Tal Law: Judicial Activism at its Height". en.idi.org.il.
http://ccc.uchicago.edu/docs/bendor.pdf
"Archived copy". Archived from the original on 2014-05-05. Retrieved 2014-05-15.CS1 maint: archived copy as title (link) Israeli Supreme Court Decisions database

References

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.
Greenhouse, Linda (2005). Becoming Justice Blackmun: Harry Blackmun's Supreme Court Journey. New York: Times Books. ISBN 978-0-8050-7791-9.CS1 maint: ref=harv (link)

Ginsberg, Benjamin, et al. We the People: an Introduction to American Politics. W.W. Norton & Company, 2017.