Judicial activism refers to judicial rulings suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint.^[1] The definition of judicial activism, and which specific decisions are activist, is a controversial political issue, particularly in the United States. The question of judicial activism is closely related to constitutional interpretation, statutory construction, and separation of powers.

Origins of the term

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, John Marshall.^[4]

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."^[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.^{[citation needed]}

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.

Examples

The following are cited as examples of 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 decriminalizing 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 judges voted 5–4 to halt the recount of ballots in Florida and, as a result, George Bush was elected president.^[17]
• 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.^[18][19]
• Hollingsworth v. Perry – 2013 decision by federal judge Vaughn R. Walker overturning California's constitutional amendment to ban same-sex marriage.^[20]
• Obergefell v. Hodges -- 2015 Supreme Court decision declaring same-sex marriage as a right guaranteed under the Due Process Clause and the Fourteenth Amendment.^[21]

By geography

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. The Public Interest Litigation was 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.^{[citation needed]} New York Times author Gardiner Harris sums this up as^[22]

All such rulings carry the force of Article 39A of the Constitution of India,^[25] 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."^[26]

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.^[25] This was recognized, and deemed not applicable 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,^[23] a move believed to have reduced Delhi's erstwhile acute smog problem (it is now argued to be back)^[27] and contrasted with Beijing's.^[28]

Israel

The Israeli approach to judicial activism has transformed significantly in the last 3 decades, and currently presents an especially broad version of robust judicial review and intervention.^[29][30][31] 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^[32] touches on diverse and controversial public matters.

See also

• Bill of rights
• Constitutional economics
• Impact litigation
• Kritarchy
• List of landmark court decisions in the United States
• Living Constitution
• Originalism
• Public interest litigation
• Philosophy of law
• Rule according to higher law
• Letter and spirit of the law

Notes

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.

Further reading