Judicial activism

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Judicial activism is a critical term used to describe judicial rulings that are viewed as imposing 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 be. The term has most often been used to describe left-wing judges, however; the Supreme Court's activity since the confirmation of justices Alito and Roberts under George W. Bush, and the ensuing perception that the conservative court was expanding the rights of corporations at the cost of the rights of citizens, has since led to conservative judges being labeled activists.

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[edit] 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 judges or courts may be perceived as activist:[1]

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.

[edit] Debate

Detractors of judicial activism charge that it usurps the power of the elected branches of government, thereby damaging the rule of law and democracy.[2] They argue that an unelected judicial branch has no legitimate grounds to overrule policy choices of duly elected representatives, in the absence of a real conflict with the constitution.[citation needed]

Defenders of judicial prerogatives say that many cases of "judicial activism" merely exemplify judicial review, and that courts must uphold existing laws and strike down any statute that violates a higher law.[citation needed] 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 majority rule.[citation needed] 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] They argue that the discretion of judges must be limited (e.g. by the intentions of lawmakers), 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 unelected judges.[citation needed]

Some proponents of a stronger judiciary argue that the judiciary should grant itself an expanded role to counterbalance the effects of 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 any particular minority through its elective powers.[3]

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

[edit] Origins

Arthur Schlesinger Jr. introduced the term "judicial activism" to the public in a January 1947 Fortune magazine article titled "The Supreme Court: 1947."[4] 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.[5] ”

[edit] 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)

[edit] 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. [6]

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]


[edit] Judicial Activism in the European Union

Main article: Judicial activism in the European Union

The European Court of Justice has historically been an important driver of integration in the EU by performing judicial activism. [7]


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. [8] 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. [9] The Court can only practice judicial activism to the extent the EU Governments leave room for interpretation in the treaties. [10] 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. [11] 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. [12]


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. [13] Ireland will possibly vote a second time on the Lisbon Treaty in 2009.

[edit] References

  1. ^ ibid., p.239
  2. ^ See, for example, Justice Antonin Scalia's dissent in Romer v. Evans[1]
  3. ^ John Hart Ely, Democracy and Distrust. Cambridge: Harvard University Press, 1980, chapters 4-6.
  4. ^ Keenan Kmiec in a 2004 California Law Review article
  5. ^ Keenan D. Kmiec, The Origin and Current Meanings of "Judicial Activism," 92 Cal. L. Rev. 1441, 1447 (2004).[2]
  6. ^ Townhall.com
  7. ^ Bache, Ian and Stephen George (2006). Politics in the European Union, 2nd ed., Oxford: Oxford University Press
  8. ^ EUabc – Cassis de Djion case: http://en.euabc.com/word/140
  9. ^ Bache, Ian and Stephen George (2006). Politics in the European Union, 2nd ed., Oxford: Oxford University Press
  10. ^ Moravcsik, A. (2002) ‘In defense of the democratic deficit: reassessing legitimacy in the European Union’ Journal of Common Market Studies. Vol 40, Issue 4
  11. ^ Moravcsik, A. (2002) ‘In defense of the democratic deficit: reassessing legitimacy in the European Union’ Journal of Common Market Studies. Vol 40, Issue 4
  12. ^ Article: Metock case brings down Danish immigration laws http://www.brusselsjournal.com/node/3457
  13. ^ Irish secure concessions on Lisbon Treaty: http://www.europeanvoice.com/article/2008/12/irish-secure-concessions-on-lisbon-treaty/63409.aspx

[edit] Sources

[edit] Books

[edit] 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).

[edit] Popular books

[edit] External links

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