Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint. It is usually a pejorative term, implying that judges make rulings based on their own political agenda rather than precedent and take advantage of judicial discretion. 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.
Etymology
Arthur Schlesinger Jr. introduced the term "judicial activism" in a January 1947 Fortune magazine article titled "The Supreme Court: 1947".
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."
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.
Definitions
A survey of judicial review in practice during the last three decades shows that 'Judicial Activism' has characterised the decisions of the Supreme Court at different times.
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."
Political science professor Bradley Canon has posited six dimensions along which judge courts may be perceived as activist: 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.
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"; 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." Supreme Court Justice Anthony Kennedy has said that, "An activist court is a court that makes a decision you don't like."
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. 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." 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. 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.
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.
United States examples
The following rulings have been characterized as judicial activism.
- Brown v. Board of Education – 1954 Supreme Court ruling ordering the desegregation of public schools.
- Roe v. Wade – 1973 Supreme Court ruling creating the constitutional right to an abortion.
- 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 justices voted 5—4 to halt the recount of ballots in Florida and, as a result, George Bush was chosen as president.
- 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.
- Hollingsworth v. Perry – 2010 decision by Vaughn R. Walker for the United States District Court for the Northern District of California overturning California's constitutional amendment to ban same-sex marriage.
- Obergefell v. Hodges – 2015 Supreme Court decision declaring same-sex marriage as a right guaranteed under the Due Process Clause and the Fourteenth Amendment.
- Janus v. AFSCME – a 2018 Supreme Court decision addressing whether unions can require dues from all workers who benefit from collective bargaining agreements. The decision overturned the 41-year old precedent of Abood v. Detroit Board of Education.
- Department of Homeland Security v. Regents of the University of California – a 2020 Supreme Court decision addressing whether the Department of Homeland Security under U.S. President Donald Trump had the authority to dismantle the Deferred Action for Childhood Arrivals program initiated by Executive Order under Former U.S. President Barack Obama.
Outside the United States
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. 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 criticized. New York Times author Gardiner Harris sums this up as
All such rulings carry the force of Article 39A of the Constitution of India, 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."
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. This was recognized, and deemed not applicable by 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, a move believed to have reduced Delhi's erstwhile acute smog problem (it is now argued to be back) and contrasted with that of Beijing.
Israel
The Israeli approach to judicial activism has transformed significantly in the last three decades, and currently presents an especially broad version of robust judicial review and intervention. 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 touches on diverse and controversial public matters.
The United Kingdom
The 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). Previously, a claim like this would be defined as definitive, but the judges had slowly begun to adopt more of an activist line approach. 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. The perceptions of judicial activism derived from the number of applications for judicial review made to the courts. This can be seen throughout the 1980s, where there about 500 applications within a year. This number dramatically increased as by 2013, there were 15,594 applications. This trend has become more frequent as time passes along, possibly pointing to a greater influence in the UK courts against the government. Along side with the amount of applications submitted to the courts, in some instances it has attracted media attention. For instance, in 1993, Jacob Rees-Mogg had challenged the Conservative government to ratify the Maastricht Treaty, which eventually had formed into the European Union. 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 frequent to scrutinise at their own will, and at times, reject government legislation that the deem to be not within balance to the UK constitution and, becoming more visible.
