Judicial activism is a judicial philosophy holding that courts can and should go beyond the applicable law to consider broader societal implications of their decisions. It is sometimes used as an antonym of judicial restraint. [1] The term usually implies that judges make rulings based on their own views rather than on precedent. [2] The definition of judicial activism and the specific decisions that are activist are controversial political issues. The question of judicial activism is closely related to judicial interpretation, statutory interpretation, and separation of powers.
Arthur Schlesinger Jr. introduced the term "judicial activism" in a January 1947 Fortune magazine article titled "The Supreme Court: 1947". [3]
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." [4]
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 Chief Justice John Marshall. [5]
![]() | The examples and perspective in this article deal primarily with the United States and do not represent a worldwide view of the subject.(May 2017) |
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." [6]
Political science professor Bradley Canon has posited six dimensions along which judge courts may be perceived as activist: [7] 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. [8]
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". Roosevelt defines judicial activism as "an approach to the exercise of judicial review, or a description of a particular judicial decision, in which a judge is generally considered more willing to decide constitutional issues and to invalidate legislative or executive actions."; [9] [10] likewise, the solicitor general under George W. Bush, Theodore Olson, said in an interview on Fox News Sunday , with regard 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." [11] Supreme Court Justice Anthony Kennedy said that, "An activist court is a court that makes a decision you don't like." [12] [13]
Echoed sentiments in many articles, such as "The courts have gradually abandoned their proper role of policing the structural limits on government and neutrally interpreting the laws and constitutional provisions without personal bias." [14]
Richard H. Fallon Jr. quotes Justice Holmes "great cases... make bad law." in their explanation on presidential overreach. "Presidents frequently interpret their own powers without judicial review and where executive precedents play a large role in subsequent interpretive debates, some of the historical assertions of presidential authority that stretch constitutional and statutory language the furthest seem hard to condemn in light of the practical stakes." [15]
![]() | The examples and perspective in this article deal primarily with the United States and do not represent a worldwide view of the subject.(May 2017) |
Detractors of judicial activism charge that it usurps the power of the elected branches of government and of legislatively created agencies, damaging the rule of law and democracy. [16] 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" or "formalist" 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." [17] [18] 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 that is not directly subject to the electorate, so that the majority cannot dominate or oppress any particular minority through its elective powers. [19] 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. [20]
Moreover, they argue that the judiciary strikes down actions of both elected and unelected officials, 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 transient majority 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 judges' philosophy should reflect that of those who nominated them, and that an independent judiciary is a great asset to civil society since special interests are unable to dictate their version of constitutional interpretation with the threat of stopping political donations. Critics of judicial activism often purport to follow a conservative agenda, though United States issues for several decades have seen extreme conservative activist rulings delivered to advance conservative economic and social causes.
Critical legal studies argues that political argument and legal argument cannot be entirely separated. [21]
The following rulings have been characterized[ by whom? ] as judicial activism.
Some US Presidents have also commented on the idea. When President George W. Bush announced his first nominations for the federal bench, he declared:
Every judge I appoint will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench. To paraphrase 4th president of the United States James Madison Jr (hailed as the Father of the Constitution for his role in drafting the Constitution of the United States and the Bill of Rights) the courts exist to exercise not the will of men, but the judgment of law. My judicial nominees will know the difference. [34] [35] [36]
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.
Judges in Canada are given the power to interpret law passed down from the legislature, discretionary power to resolve disputes, and the power to use common law and accepted judicial policy to render judgement. By the principle of separation of powers, a strong tradition in Canada and accepted practice, judges should respect the role of the legislature to create law.[ according to whom? ] Judges are also charged to impartially apply the law as it is written.[ citation needed ]
Canada has a legal system that is derived from the British system of common law (and the French system in the province of Quebec). Canadian Courts have a structure that relies more heavily on the discretion of its judges, policy and common law to create a workable body of law.[ citation needed ] Thus Canada's legal system may have more potential for conflicts with regards to the accusation of judicial activism, as compared to the United States. [ neutrality is disputed ]
Former Chief Justice of the Supreme Court of Canada Beverley McLachlin has stated that:
Such accusations often arise in response to rulings involving the Canadian Charter of Rights and Freedoms.[ weasel words ] Specifically, rulings that have favoured the extension of gay rights, have prompted accusations of judicial activism.[ weasel words ] Justice Rosalie Abella is a particularly common target of those who perceive activism on the Supreme Court of Canada bench.[ weasel words ]
The judgment Chaoulli v Quebec [2005] 1 R.C.S. which declared unconstitutional the prohibition of private healthcare insurance, and challenged the principle of Canadian universal health care in Quebec was deemed by many as a prominent example of judicial activism.[ weasel words ] The judgment was written by Justice Deschamps with a tight majority of 4 against 3.
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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. [37] When the treaties are unclear, they leave room for the Court to interpret them 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 get a compromise, governments agree to leave a decision on an issue to the Court. [38] [ page needed ]
The Court can only practice judicial activism to the extent the EU Governments leave room for interpretation in the treaties. [39] [ page needed ]
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. [39] [ page needed ]
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 member states of the European Union to make written guarantees that the EU will under no circumstances interfere with Irish abortion, taxation or military neutrality. [40] Ireland voted on the Lisbon Treaty a second time in 2009, with a 67.13% majority voting Yes to the treaty.
India has a recent history of judicial activism, originating after the Emergency in India which saw attempts by the Government to control the judiciary. Public Interest Litigation was thus 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 as criticized. [41] [42] [43] [44] [45] [46] New York Times writer Gardiner Harris sums this up as [47]
India's judges have sweeping powers and a long history of judicial activism that would be all but unimaginable in the United States. In recent years, judges required Delhi's auto-rickshaws to convert to natural gas to help cut down on pollution, [48] [49] closed much of the country's iron-ore-mining industry to cut down on corruption and ruled that politicians facing criminal charges could not seek re-election. Indeed, India's Supreme Court and Parliament have openly battled for decades, with Parliament passing multiple constitutional amendments to respond to various Supreme Court rulings.
All such rulings carry the force of Article 39A of the Constitution of India, [50] 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." [51] [ better source needed ]
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. [50] This doctrine has been recognized by several countries like Bangladesh, Pakistan and Malaysia as part of their jurisprudence. Other countries such as Singapore, Belize and Uganda has heard important cases regarding the use of this doctrine in their own countries. The modern trend of judicial activism began in 1973 when the Allahabad High Court rejected the candidature of Indira Gandhi in State of Uttar Pradesh v. Raj Narain . The introduction of public interest litigation by Justice V. R. Krishna Iyer further expanded its scope. [52] Recent examples quoted include the order to Delhi Government to convert the Auto rickshaw to CNG, [48] a move believed to have reduced Delhi's erstwhile acute smog problem (it is now argued to be back) [53] and contrasted with that of Beijing. [54]
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The Israeli approach to judicial activism has transformed significantly in the three decades since the 1992 Constitutional Revolution led by Aharon Barak, and, as of 2022, presents an especially broad version of robust judicial review and intervention. [55] [56] 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 [57] touches on diverse and controversial public matters.[ original research? ]
British courts were largely deferential towards their attitudes against the government before the 1960s. Since then, judicial activism has been well established throughout the UK. One of the first cases for this activism to be present was the Conway v Rimmer (1968); a Public-interest immunity, previously known as Crown privilege. [58] Previously, a claim like this would be defined as definitive, but the judges had slowly begun to adopt more of an activist line approach. [59] This had become more prominent in which government actions were overturned by the courts. This can inevitably lead to clashes between the courts against the government as shown in the Miller case consisting of the 2016 Conservative government. [60] The perceptions of judicial activism derived from the number of applications for judicial review made to the courts, which led to R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland in 2019, joint landmark constitutional law cases on the limits of the power of royal prerogative to prorogue the Parliament of the United Kingdom. This can be seen throughout the 1980s, where there were about 500 applications within a year. [61] This number dramatically increased as by 2013, there were 15,594 applications. [62] This trend has become more frequent as time passes along, possibly pointing to a greater influence in the UK courts against the government. Along with the number of applications submitted to the courts, in some instances it has attracted media attention. For instance, in 1993, William Rees-Mogg had challenged the Conservative government to ratify the Maastricht Treaty (a legislation that self described as "a new stage in the process of European integration"), which eventually had formed into the European Union and initiated the Eurodollar. [63] This was rejected by the Divisional Court and attracted large amounts of media attention to this case. Through these components it is largely evident that judicial activism should not be exaggerated. Ultimately, judicial activism is greatly established throughout the UK as the courts are becoming more prone to scrutinise at their own will, and at times, reject government legislation that they deem to be not within balance to the UK constitution and becoming more visible doing so. [64]
Obviously since the United Kingdom's judiciary powers do not come from electoral methods, they differ in strengths, weaknesses, opportunities, and threats compared to a free and democratic system. [65] [66] [67] [68] Baroness Hale of Richmond raises the popular concern that this system operates on a fundamentally different playbook to the United States of America's court of law, and personal bias can be inherited, through an 'old boys' club'.
Among critics of judicial activism in the United Kingdom are Richard Ekins, John Finnis, and Sir Stephen Laws. Policy Exchange's Judicial Power Project, headed by Ekins, is dedicated to opposing judicial activism by British judges.
It is not pejorative, and studies suggest that it does not have a consistent political valence.
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.
Constitutional law is a body of law which defines the role, powers, and structure of different entities within a state, namely, the executive, the parliament or legislature, and the judiciary; as well as the basic rights of citizens and, in federal countries such as the United States and Canada, the relationship between the central government and state, provincial, or territorial governments.
Marbury v. Madison, 5 U.S. 137 (1803), was a landmark decision of the U.S. Supreme Court that established the principle of judicial review, meaning that American courts have the power to strike down laws and statutes they find to violate the Constitution of the United States. Decided in 1803, Marbury is regarded as the single most important decision in American constitutional law. It established that the U.S. Constitution is actual law, not just a statement of political principles and ideals. It also helped define the boundary between the constitutionally separate executive and judicial branches of the federal government.
In United States constitutional law, the political questiondoctrine holds that a constitutional dispute that requires knowledge of a non-legal character or the use of techniques not suitable for a court or explicitly assigned by the Constitution to the U.S. Congress, or the President of the United States, lies within the political, rather than the legal, realm to solve, and judges customarily refuse to address such matters. The idea of a political question is closely linked to the concept of justiciability, as it comes down to a question of whether or not the court system is an appropriate forum in which to hear the case. This is because the court system only has the authority to hear and decide a legal question, not a political one. Legal questions are deemed to be justiciable, while political questions are nonjusticiable. One scholar explained:
The political question doctrine holds that some questions, in their nature, are fundamentally political, and not legal, and if a question is fundamentally political ... then the court will refuse to hear that case. It will claim that it doesn't have jurisdiction. And it will leave that question to some other aspect of the political process to settle out.
Article Three of the United States Constitution establishes the judicial branch of the U.S. federal government. Under Article Three, the judicial branch consists of the Supreme Court of the United States, as well as lower courts created by Congress. Article Three empowers the courts to handle cases or controversies arising under federal law, as well as other enumerated areas. Article Three also defines treason.
Martin v. Hunter's Lessee, 14 U.S. 304 (1816), was a landmark decision of the Supreme Court of the United States decided on March 20, 1816. It was the first case to assert ultimate Supreme Court authority over state courts in civil matters of federal law.
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In the United States, strict constructionism is a particular legal philosophy of judicial interpretation that limits or restricts the powers of the federal government only to those expressly, i.e., explicitly and clearly, granted to the government by the United States Constitution. While commonly confused with textualism or originalism, they are not the same, and in fact frequently contradict, as textualists like Antonin Scalia have noted.
Separation of powers is a political doctrine originating in the writings of Charles de Secondat, Baron de Montesquieu in The Spirit of the Laws, in which he argued for a constitutional government with three separate branches, each of which would have defined abilities to check the powers of the others. This philosophy heavily influenced the drafting of the United States Constitution, according to which the Legislative, Executive, and Judicial branches of the United States government are kept distinct in order to prevent abuse of power. The American form of separation of powers is associated with a system of checks and balances.
The Supreme Court of Pakistan is the apex court in the judicial hierarchy of the Islamic Republic of Pakistan.
Judicial restraint is a judicial interpretation that recommends favoring the status quo in judicial activities and is the opposite of judicial activism. Aspects of judicial restraint include the principle of stare decisis ; a conservative approach to standing and a reluctance to grant certiorari; and a tendency to deliver narrowly tailored verdicts, avoiding "unnecessary resolution of broad questions."
The Living Constitution, or judicial pragmatism, is the viewpoint that the U.S. constitution holds a dynamic meaning even if the document is not formally amended. The Constitution is said to develop alongside society's needs and provide a more malleable tool for governments. The idea is associated with views that contemporary society should be considered in the constitutional interpretation of phrases. The Constitution is referred to as the living law of the land as it is transformed according to necessities of the time and the situation. Some supporters of the living method of interpretation, such as professors Michael Kammen and Bruce Ackerman, refer to themselves as organicists.
In the United States, judicial review is the legal power of a court to determine if a statute, treaty, or administrative regulation contradicts or violates the provisions of existing law, a State Constitution, or ultimately the United States Constitution. While the U.S. Constitution does not explicitly define the power of judicial review, the authority for judicial review in the United States has been inferred from the structure, provisions, and history of the Constitution.
In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, and highcourt of appeal, and court of final appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of a supreme court are binding on all other courts in a nation and are not subject to further review by any other court. Supreme courts typically function primarily as appellate courts, hearing appeals from decisions of lower trial courts, or from intermediate-level appellate courts. A Supreme Court can also, in certain circumstances, act as a court of original jurisdiction, however, this is typically limited to constitutional law.
The Constitutional Court is the supreme interpreter of the Spanish Constitution, with the power to determine the constitutionality of acts and statutes made by any public body, central, regional, or local in Spain. It is defined in Part IX of the Constitution of Spain, and further governed by Organic Laws 2/1979, 8/1984, 4/1985, 6/1988, 7/1999 and 1/2000. The Court is the "supreme interpreter" of the Constitution, but since the Court is not a part of the Spanish Judiciary, the Supreme Court is the highest court for all judicial matters.
Nullification, in United States constitutional history, is a legal theory that a state has the right to nullify, or invalidate, any federal laws which they deem unconstitutional with respect to the United States Constitution. There are similar theories that any officer, jury, or individual may do the same. The theory of state nullification has never been legally upheld by federal courts, although jury nullification has.
Judicial review is a process under which a government's executive, legislative, or administrative actions are subject to review by the judiciary. In a judicial review, a court may invalidate laws, acts, or governmental actions that are incompatible with a higher authority. For example, an executive decision may be invalidated for being unlawful, or a statute may be invalidated for violating the terms of a constitution. Judicial review is one of the checks and balances in the separation of powers—the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority. The doctrine varies between jurisdictions, so the procedure and scope of judicial review may differ between and within countries.
Judicial independence is protected by Singapore's Constitution, statutes such as the State Courts Act and Supreme Court of Judicature Act, and the common law. Independence of the judiciary is the principle that the judiciary should be separated from legislative and executive power, and shielded from inappropriate pressure from these branches of government, and from private or partisan interests. It is crucial as it serves as a foundation for the rule of law and democracy.
Judicial interpretation is the way in which the judiciary construes the law, particularly constitutional documents, legislation and frequently used vocabulary. This is an important issue in some common law jurisdictions such as the United States, Australia and Canada, because the supreme courts of those nations can overturn laws made by their legislatures via a process called judicial review.
Judicial review in India is a process by which the Supreme Court and the High Courts of India examine, determine and invalidate the Executive or Legislative actions inconsistent with the Constitution of India. The word judicial review finds no mention in the Constitution of India but The Constitution of India implicitly provides for judicial review through Articles 13, 32 and through 136, 142 and 226.
The judiciary of South Korea is the judicial branch (사법부) of South Korean central government, established by Chapter 5 and 6 of the Constitution of South Korea.