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Judicial activism is a critical term used by some to describe judicial rulings that they feel are based more upon the judge's personal bias than by existing law. Judicial restraint is sometimes used to refer to the opposite of judicial activism.

The issue of judicial activism is closely tied to concepts of the separation of powers within government.

[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.

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 or appointed agencies , thereby damaging the rule of law and democracy.^[1] They argue that an unelected or elected judicial branch has no legitimate grounds to overrule policy choices of duly elected or appointed representatives, in the absence of a real conflict with the constitution.^{[citation needed]} In some instances, government regulation by appointed officers in government agencies are overturned by elected judges.

Defenders of judicial prerogatives say that many cases of so called "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 transient majority rule.^{[citation needed]} It is common for the charge to arise simply because one disagree with a certain ruling regardless of where the majority at the moment stands.

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]} Defenders counterclaim that indeed this is precisely what the role of the judiciary is , namely to interpret the law. Detractors argue that the discretion of judges must be limited e.g. by the intentions of lawmakers and appointed or elected government officers , 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 elected or appointed judges.^{[citation needed]}

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.^[2] Moreover, they argue that the judiciary strikes down both elected and unelected official action, that in some instances acts of legislative bodies reflect 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, that 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 corporations and the wealthy are unable to dictate their version of constitutional interpretation with threat of stopping political donations.

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."^[3] According to Keenan Kmiec, in a 2004 article in California Law Review,

[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.^[5]

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]}

Supporters of the concept, however, argue that to deny that the Constitution is a living, breathing document is to deny reality. Each and every act of trying to determine what the Constitution means, these supporters argue, is an act of interpretation. The best we can do is to acknowledge this reality and in this way avoid hiding politically conservative understandings of the Constitution under the cloak of objectivity.

[edit] Judicial Activism in the European Union

The European Court of Justice has historically been an driver of integration in the EU by performing judicial activism.^[6]

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.^[7] 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.^[6]

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

[edit] Treaty of Lisbon

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.^[10] Ireland accepted the Lisbon treaty in June 2009 under these new terms.

[edit] See also

• Bill of rights

Rule by judges:

• Kritocracy
• Kritarchy

[edit] References

[edit] Sources

• 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. 

[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

• 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. Judicial Activism vs. Democracy: What are the National Implications of the Massachusetts Goodridge Decision and the Judicial Invalidation of Traditional Marriage Laws? (U.S. G.P.O., Supt. of Docs., Congressional Sales Office Publishers), 263pp. Serial No. J-108-59. GPO Stock No. 552-070-32572-7, 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

[edit] External links

• Ronald Dworkin, The Jurisprudence of Richard Nixon, 1972.
• Matthew J. Franck, Depends What the Meaning of "Judicial Activism" Is, 2006.
• Jonah Goldberg, Justice Kennedy's Mind: Where the Constitution resides, 2005.
• Keenan Kmiec, The origin and current meanings of "judicial activism", California Law Review, 2004.
• Charles Krauthammer, The Constitution is whatever Sandra Day O'Connor says it is, 2003.
• Larry Solum, "Jargon" (blog entry), 2004.
• Joseph Tussman, Judicial Activism and the Rule of Law - Toward a Theory of Selective Intervention, 1991
• Thomas Sowell, Judicial activism reconsidered, 1989.
• Edward Whelan, A View from the Bench: The unpersuasive case for judicial activism, Weekly Standard 2006-12-04.
• "¡Viva el Activismo Judicial!", by Clint Bolick, Gertrude Ryan Law Observatory, 2007 (Spanish)
• CourtZero.org
• Judicial Activism in America: Information Resources and Proposed Solutions
• Defining Judicial Activism in the Context of the Culture Wars
• Who are the bench's judicial activists? Looking at the Supreme Court justices' voting records, the lines between activism and restraint may surprise you
• Every Judge Is an "Activist Judge" by Allison Kilkenny, The Huffington Post, July 13 2009
• Judical Dictionary.
• Movement for Rule of Law Pakistan