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Judicial activism
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Judicial activism may be either a descriptive or a normative term, but in common usage is primarily used in a way that is both normative and pejorative." As a descriptive term, it applies to the activities of judges who, in the course of carrying out their duties, go beyond the strictly judicial function and enter into the political policymaking arena. In its normative, pejorative, sense the term is used to imply that such activity is illegitimate.
term "judicial activism" is frequently used in political debate without definition, which has created some confusion over its precise meaning or meanings.
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Judicial activism may be either a descriptive or a normative term, but in common usage is primarily used in a way that is both normative and pejorative." As a descriptive term, it applies to the activities of judges who, in the course of carrying out their duties, go beyond the strictly judicial function and enter into the political policymaking arena. In its normative, pejorative, sense the term is used to imply that such activity is illegitimate.
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. 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 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.
In common usage, the term "activist judge" is used to describe a judge who does any or all of the following: subverts, misuses, misinterprets, ignores, or otherwise flouts the law and/or legal precedents. Such activity is usually attributed to the judge's use of personal preferences in his or her decision, whether ideological, religious, or philosophical. The term may also be used when a judge has made a decision with which the speaker disagrees for any of these reasons, whether or not the speaker perceives the judge to be acting outside of his or her sphere of authority.
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. 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.
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. 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. 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. 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.
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.
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 Fortune magazine article in January 1947. Keenan Kmiec discusses Schlesinger's article "The Supreme Court: 1947" from Fortune, January 1947. According to Kmiec,
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.
Originalism as judicial activism
Some critics of originalism have charged that a coalition of American conservatives (most prominently Justice Scalia of the U.S. Supreme Court, starting in the mid-1990s) and libertarians seek to overturn New Deal-era Supreme Court rulings whose expansive interpretations of constitutional Congressional power allowed the emergence of the modern regulatory and welfare state. Conservatives, in response, argue that these charges are overblown.
Quotes on judicial activism
Statements by Judges
All of the current justices of the United States Supreme Court have seemingly disavowed judicial activism at certain points. Chief Justice John Roberts' disavowal of judicial activism is well-known from his confirmation hearing ("Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.”). Roberts has stated that his view of judicial activism stems from that of Justices Felix Frankfurter and John Marshall Harlan II and further stated:
- "[C]ourts should not intrude into areas of policy making reserved by the Constitution to the political branches ... To the extent the term judicial activism is used to describe unjustified intrusions by the judiciary into the realm of policy making, the criticism is well-founded.
- "At the same time, the Framers insulated the federal judiciary from popular pressure in order that the courts would be able to discharge their responsibility of interpreting the law and enforcing the limits the Constitution places on the political branches. Thoughtful critics of 'judicial activism' — such as Justices Holmes, Frankfurter, Jackson, and Harlan — always recognized that judicial vigilance in upholding constitutional rights was in no sense improper 'activism.' It is not 'judicial activism' when the courts carry out their constitutionally-assigned function and overturn a decision of the Executive or Legislature in the course of adjudicating a case or controversy properly before the courts. ...
- "[J]udges must be constantly aware that their role, while important, is limited. They do not have a commission to solve society's problems, as they see them, but simply to decide cases before them according to the rule of law. When the other branches of government exceed their constitutionally mandated limits, the courts can act to confine them to the proper bounds. It is judicial self-restraint, however, that confines judges to their proper constitutional responsibilities."
U.S. Supreme Court Justice John Paul Stevens referred in 1983's Michigan v. Long to "my belief that a policy of judicial restraint — one that allows other decisional bodies to have the last word in legal interpretation until it is truly necessary for this Court to intervene — enables this Court to make its most effective contribution to our federal system of government."
U.S. Supreme Court Justice David Souter wrote in his opinion in 1997's Washington v. Glucksberg, "We therefore have a clear question about which institution, a legislature or a court, is relatively more competent to deal with an emerging issue as to which facts currently unknown could be dispositive. The answer has to be, for the reasons already stated, that the legislative process is to be preferred . . . The experimentation that should be out of the question in constitutional adjudication displacing legislative judgments is entirely proper, as well as highly desirable, when the legislative power addresses an emerging issue like assisted suicide."
U.S. Supreme Court Justice Ruth Bader Ginsburg has written, "Measured motions seem to me right, in the main, for constitutional as well as common law adjudication. Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable," in the context of arguing that the Court in Roe v. Wade displaced too much existing state abortion law too quickly.
U.S. Supreme Court Justice Stephen Breyer has averred a belief in judicial deference to democratic decision-making, for example in his book, Active Liberty: Interpreting Our Democratic Constitution. Thus, Breyer is often reluctant to join strong interpretations of the First or Fourteenth Amendments striking down laws if the laws at issue reflect considered democratic decision-making.
The late U.S. Supreme Court Justice Harry Blackmun explicitly disavowed judicial activism in his dissent in 1972's Furman v. Georgia, which overturned existing state capital punishment statutes. Blackmun, while arguing that "I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty", wrote, "Although personally I may rejoice at the Court's result, I find it difficult to accept or to justify as a matter of history, of law, or of constitutional pronouncement." Later in his career, however, Blackmun consistently voted to hold capital punishment regimes unconstitutional.
U.S. Federal Eleventh Circuit Judge William H. Pryor, Jr. discussed judicial activism in a Wall Street Journal piece on October 8, 2006.
In Australia, Justice Dyson Heydon, while a judge of the Court of Appeal of New South Wales, gave a speech that was later widely published with the title 'Judicial Activism and Death of the Rule of Law', at a time when the government was attempting to find a replacement for a retiring judge of the High Court of Australia. His speech was widely seen as an application for the job, and it turned out to be successful.
American President Ronald Reagan criticized judicial activism:
- "I intend to go right on appointing highly qualified individuals of the highest personal integrity to the bench, individuals who understand the danger of short-circuiting the electoral process and disenfranchising the people through judicial activism."
Judicial activism and individual U.S. Supreme Court cases
Various cases and judicial shifts throughout the Supreme Court's history have prompted accusations of judicial activism or overreaching, such as the following:
Johnson v. McIntosh 1823 Re-Invented Doctrine of Discovery
United States v. Kagama 1886 Established plenary power of Congress over Indians
Lone Wolf v. Hitchcock, 1903 Established political question doctrine regarding Indian issues making Congressional actions unreviewable.
- Lochner v. New York, 1905.
- Both of the Supreme Court's reactions to the New Deal, both before and after the "switch in time" in 1937
- Various decisions by the Warren Court (1953-1969), including:
- Roe v. Wade, 1973.
- United States v. Lopez, 1995
- Bush v. Gore, 2000.
- Lawrence v. Texas, 2003.
- Kelo v. City of New London, 2005.
- Roper v. Simmons, 2005.
- District of Columbia v. Heller, 2008.
- In re Marriage Cases (California Supreme Court).
Sources
- Merriam-Webster's Dictionary of Law (1996), Merriam-Webster. ISBN 0-87779-604-1
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 ), 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).
Popular books
- Kermit Roosevelt, October 15, 2006. The Myth of Judicial Activism: Making Sense of Supreme Court Decisions (Yale University Press Publishers), 272pp. ISBN 0-300-11468-0
- James B. Kelly, July 30, 2006. Governing With the Charter: Legislative And Judicial Activism And Framer's Intent (Law and Society Series) (UBC Press Publishers), 336pp. ISBN 0-7748-1212-5
- Rory Leishman, May 2006. Against Judicial Activism: The Decline of Freedom And Democracy in Canada (McGill-Queen's University Press Publishers), 310pp. ISBN 0-7735-3054-1
- Mark Sutherland, 2005. Judicial Tyranny: The New Kings of America? ISBN 0-9753455-6-7
- Mark R. Levin, 2005. Men In Black: How the Supreme Court Is Destroying America ISBN 0-89526-050-6
- S.Hrg. 108–717, 2004. (U.S. G.P.O., Supt. of Docs., Congressional Sales Office Publishers), 263pp. Serial No. J-108-59. , ISBN 0-16-074535-7
- Phyllis Schlafly, 2004. The Supremacists: The Tyranny Of Judges And How To Stop It ISBN 1-890626-55-4
- S. P. Sathe, December 2003. Judicial Activism in India (Oxford University Press Publishers), 406pp. ISBN 0-19-566823-5
- David Barton, 2003. Restraining Judicial Activism (Wallbuilder Press). ISBN 1932225145
- Robert Bork, 2003. Coercing Virtue: The Worldwide Rule of Judges (AEI Press) ISBN 0844741620
- Stephen P. Powers and Stanley Rothman, 2002. The Least Dangerous Branch? Consequences of Judicial Activism (Praeger Paperbacks). ISBN 0275975363
- Herman Schwartz, editor, 2002. The Rehnquist Court: Judicial Activism on the Right ISBN 0-8090-8073-7.
- David Gwynn Morgan, 2001. A Judgment Too Far? Judicial Activism and the Constitution (Cork University Press). ISBN 1859182291
- Bradley C. Canon and Charles A. Johnson, 1998. Judicial Policies: Implementation and Impact 2nd ed. (Congressional Quarterly Books).
- William P. Murchison, 1982. Judicial Politics Gone Wild: A Case Study of Judicial Activism in Texas (Washington Legal Foundation), 11pp
External links
- Ronald Dworkin, , 1972.
- Matthew J. Franck, , 2006.
- Jonah Goldberg, , 2005.
- Keenan Kmiec, , California Law Review, 2004.
- Charles Krauthammer, , 2003.
- Larry Solum, (blog entry), 2004.
- Joseph Tussman, , 1991
- Thomas Sowell, , 1989.
- Edward Whelan, , Weekly Standard 2006-12-04.
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