Judicial activism
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Judicial activism is often characterized as the act of judicial interpretation that results in case law that does not follow precedent or other judicial actions that exceeds the scope of established law or the role of the judiciary, and can be contrasted with judicial restraint.
The extent to which the decisions of judges are sometimes characterized as "activist" is part of an ongoing controversy over the appropriate role and function of the judiciary, notably in the United States, Australia and Canada. Because the role of the judiciary differs in different legal systems, a decision characterised as an instance of judicial activism in one legal system may not constitute judicial activism in another. This article focuses on debate over judicial activism in the United States. For discussions of judicial activism elsewhere, see judicial activism (Australia) and judicial activism (Canada).
Opponents of judicial activism contend that the judiciary must not create new law when resolving disputes or interpreting the law. They argue that the law-making role is strictly the preserve of the legislature, and that when judges venture into this role (or into the role of the executive branch through orders requiring extensive judicial oversight of government functions), they usurp the prerogatives of other branches and levels of government.
Proponents argue that the role of the judiciary under the doctrine of the separation of powers will sometimes necessarily result in decisions which go beyond established law, and that this serves as a useful and desirable safeguard against majoritarianism. They also question the opprobrium associated with the term, seeing it as an example of loaded language which contains the unstated and uncritical assumption that the judiciary must never create new law when interpreting it.
"Judicial activism" is increasingly used pejoratively or as a discrediting tactic in relation to a ruling or decision which is not accepted, especially if the ruling or decision is perceived to endorse or implement a social or political agenda. An individual's position on whether a decision constitutes judicial activism or whether judicial activism is desireable often reflects their stance on a host of other socio-political issues.
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Definition
The definition of "judicial activism" is itself an intense ongoing debate. According to Merriam-Webster's Dictionary of Law, judicial activism is "the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent". According to Black's Law Dictionary, judicial activism is "a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usu. with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent." Different legal scholars and judges have different definitions of judicial activism.
Roberts/Frankfurter/Harlan "conservative" view
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John Roberts, the Chief Justice of the United States Supreme Court, has stated that his view of judicial activism stems from that of Justices Felix Frankfurter and John Marshall Harlan II:
- "[C]ourts should not intrude into areas of policy making reserved by the Constitution to the political branches. As Justice Frankfurter has noted, 'Courts are not representative bodies. They are not designed to be a good reflex of a democratic society.' In our democratic system, responsibility for policy making properly rests with those branches that are responsible and responsive to the people. It was precisely because the Framers intended the judiciary to be insulated from popular political pressures that the Constitution accords judges tenure during good behavior and protection against diminution of salary. 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."[1]
Breyer
[[Category:{{{1|}}} articles with sections needing expansion]]In his book Active Liberty, Justice Stephen Breyer argues that conservative judges are willing to use a strict construction of the Constitution to frustrate the essentially democratic character of the Constitution.
Sunstein/Gewirtz
Liberal scholars such as Cass Sunstein and Paul Gewirtz have attempted to redefine judicial activism neutrally to apply simply to a decision of the judiciary to strike down legislative acts. A 2005 study of the Supreme Court using this definition found that Justices Thomas, Kennedy and Scalia voted to strike down the greatest number of Congressional provisions, while Stevens, Ginsburg and Breyer voted to strike down the smallest.[2]
Conservatives have criticized this study as irrelevant to the question of judicial activism, because (1) the definition does not distinguish between striking down legislative acts within the generally accepted role of judicial review as part of the judicial branch's constitutional duty of interpreting the law, and (2) because the Supreme Court is generally conservative, and because its jurisdiction is discretionary, the fact that liberal justices in the minority vote to strike down fewer legislative acts may simply reflect fewer opportunities to do so. [3]
David Strauss critique of "judicial activism" as a concept
Professor David Strauss has argued that judicial activism can be narrowly defined as one or more of three possible things:[4]
- Overturning laws as unconstitutional (Sunstein/Gewirtz)
- Overturning judicial precedent
- Ruling against a preferred interpretation of the Constitution
Strauss's argument is that the first two definitions apply equally to conservatives and liberals, and that the third definition is simply indeterminate, because the judge is presumably ruling according to his or her own good-faith interpretation of the Constitution.
Conservatives argue that these definitions focus too heavily on questions of interpretation, rather than the different question of whether judicial action is outside the scope of the judicial power. For example, the Strauss definitions arguably would not cover the controversial acts of a Tennessee federal district judge, John Nixon, who has placed the state's Medicaid program under judicial oversight under a lawsuit brought in his court.
Religious right critique
The religious right has used the term "judicial activism" or the more pejorative epithet "judicial tyranny" to reflect judicial decisions that they feel infringe upon the role of religion in society. For example, some religious conservatives criticized the Terri Schiavo rulings as "judicial activism," though liberal and conservative judges alike ruled identically against federal legislative efforts to interfere with the state-court decisions.
Judicial philosophies as judicial activism
The Living Constitution as judicial activism
Some critics argue that the Living Constitution approach to judicial philosophy is necessarily activist. Their argument is that the Living Constitution philosophy endorses any ruling, so long as the judge can argue that his ruling 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, the Living Constitution leads to unpredictable rulings, making it impossible to obey the law. One possible outcome of this confusion is the threat of frivolous lawsuits. [5]
Critics of the Living Constitution 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 which is not done strictly in accordance with existing law must be activism. Indeed, they continue, Congress is explicitly empowered by the Constitution to make law, and the Constitution deliberately has an amendment process in Article V. Consequently, any change to the laws or the Constitution outside this framework is itself illegal.
Usually these critics are originalists. Originalists of all types reject the idea that contemporary standards should determine the meaning of the Constitution, and consequently reject the idea that the meaning of the Constitution can change (outside, that is, of the Article V amendment process). Because of this they believe that the Living Constitution is inherently activist.
Originalism as judicial activism
Some critics of originalism have charged that a coalition of conservatives and libertarians seek judicial activist results that would overturn the New Deal. Conservatives argue that these charges are overblown. The Supreme Court's recent refusal to limit the scope of the Commerce Clause in Gonzales v. Reich, with Justice Antonin Scalia voting in the majority, seems to have temporarily quelled fears of a sudden jurisprudential shift.
Judicial activism and individual cases
[[Category:{{{1|}}} articles with sections needing expansion]]Various cases and judicial shifts throughout the Supreme Court's history have been accused of being judicial activism or overreaching. For the debates over these cases, see the main article associated with those cases or movements.
- The Marshall Court's decisions in Chisholm v. Georgia and Marbury v. Madison;
- the Dred Scott case;
- Plessy v. Ferguson
- Lochner v. New York
- both of the Supreme Court's reactions to the New Deal, both before and after the "switch in time" in 1937;
- the Warren Court;
- Roe v. Wade and Lawrence v. Texas;
- Lopez v. United States and the Rehnquist Court's federalism decisions;
- Bush v. Gore; and
- Roper v. Simmons.
Quotes on judicial activism
Supreme Court
All of the current justices of The U.S. Supreme Court have explicitly 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.”), but he gave a lengthier written answer that sets out his philosophy in detail.
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."
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."
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.
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 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.)
Politicians
Thomas Jefferson saw activist judges as the bane of democracy, writing:
- "The Judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our Constitution from a coordination of a general and special government to a general and supreme one alone." letter to Thomas Ritchie, 1820
Canada
In Canada, such accusations often arise in response to rulings involving the Canadian Charter of Rights and Freedoms, especially (but not exclusively) rulings that have favored the extension of gay rights. Justice Rosalie Abella is a particularly common target of those who perceive inappropriate activism on the Supreme Court of Canada bench.
See also
Sources
- Merriam-Webster's Dictionary of Law (1996), Merriam-Webster. ISBN 0877796041
- Template:Cite book
Books
Legal books
- Alexander M. Bickel, 1986. The Least Dangerous Branch 2nd ed. (New Haven, CT: Yale University Press).
- Paul O. Carrese, 2003. The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism (Chicago: University of Chicago Press).
- Ronald Dworkin, 1977. Taking Rights Seriously (Cambridge, MA: Harvard University Press).
- Ronald Dworkin, 1988. Law's Empire (Cambridge, MA: Harvard University Press).
- Lino A. Graglia, 1976. Disaster by Decree (Ithaca, NY: Cornell University Press).
- H.L.A. Hart, 1961. The Concept of Law (Oxford: Oxford University Press).
- Sterling Harwood, 1996. Judicial Activism: A Restrained Defense (London: Austin & Winfield Publishers), 167pp. ISBN 1880921685
- Kenneth M. Holland, editor, 1991. Judicial Activism in Comparative Perspective (Palgrave Macmillan).
- Duncan Kennedy, 1998. A Critique of Adjudication (Cambridge, MA: Harvard University Press).
- Arthur Selwyn Miller, 1982. Toward Increased Judicial Activism (Greenwood 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).
- Christopher Wolfe, 1997. Judicial Activism, 2nd ed. (Totowa, NJ: Rowman & Littfield Publishers, Inc.).
Popular books
- David Barton, 2003. 'Restraining Judicial Activism (Wallbuilder Press).
- Robert Bork, 2003. Slouching Toward Gomorrah: Modern Liberalism and American Decline (Regan Books).
- Bradley C. Canon and Charles A. Johnson, 1998. Judicial Policies: Implementation and Impact 2nd ed. (Congressional Quarterly Books).
- Phyllis Schlafly, 2004. The Supremacists: The Tyranny Of Judges And How To Stop It ISBN 1-890-62655-4
- Mark Sutherland, 2005. *Judicial Tyranny: The New Kings of America? ISBN 0975345567
- Mark R. Levin, 2005. Men In Black: How the Supreme Court Is Destroying America ISBN 0-895-26050-6
- David Gwynn Morgan, 2001. A Judgment Too Far? Judicial Activism and the Constitution (Cork University Press).
- William P. Murchison, 1982. Judicial Politics Gone Wild: A Case Study of Judicial Activism in Texas (Washington Legal Foundation), 11pp.
- Stephen P. Powers and Stanley Rothman, 2002. The Least Dangerous Branch? Consequences of Judicial Activism (Praeger Paperbacks).
- Herman Schwartz, editor, 2002. The Rehnquist Court: Judicial Activism on the Right ISBN 0809080737.
External links
- Ending Judicial Tyranny (PowerPoint)
- Thomas Sowell. Judicial activism reconsidered
- Don Feder, 2000. Liberals discover judicial activism
- Charles Krauthammer, 2003. The Constitution is whatever Sandra Day O'Connor says it is
- Judges Gone Wild
- Nixon and judicial activism
- The origin and current meanings of "judicial activism" (California Law Review - October, 2004)
- CourtZero.org
- Larry Solum, "Jargon"he:אקטיביזם שיפוטי