Racial discrimination in jury selection

From Wikipedia, the free encyclopedia

Racial discrimination in jury selection is specifically prohibited by law in many jurisdictions throughout the world. In the United States, it has been defined through a series of judicial decisions. However, juries composed solely of one racial group are legal in the United States and other countries. While the racial composition of juries is not dictated by law, racial discrimination in the selection of jurors (regardless of the jury's ultimate composition) is specifically prohibited. Depending on context, the phrases "all-white jury" or "all-black jury" can raise the expectation that deliberations may be unfair.

Australia

In Australia, the right to a representative jury is severely limited. Australian Aboriginals are overrepresented in the criminal justice system, but seldom appear on juries even in parts of Australia where they represent a sizable portion of the population.

Courts have examined objections raised when the selection of juries did not represent either the social class or ethnic background of the accused. Current law does not extend a legal right to that degree of representation on a jury, provided that selection of the jury pool has complied with the Juries Act 1967 (VIC).

There is a history of Aboriginal people being underrepresented in jury pools, or completely absent in juries selected to hear cases involving Aboriginal defendants. Some reasons offered are that Aboriginal people may be excluded from juries due to not being enrolled to vote (which is how juries are typically selected), or that they failed to respond to a summons, or because of challenges by the prosecution and defense attorneys, or because their English may be poor. Australia has mandatory voter enrolment and mandatory voting, but this is sometimes unenforced especially in remote areas or among homeless people.

However, there is also evidence that Aboriginal people are disadvantaged by the criminal justice system itself and its processes (such as jury selection). The ALRC found that Aboriginal Australians were 7 times more likely to be charged with a crime and brought before the courts, but 12.5 times more likely to receive a sentence of imprisonment.

• In 1983, 16-year-old Aboriginal boy John Pat was attacked by five police officers and beaten to death in Roeburne, Western Australia. The officers were tried for manslaughter, but acquitted by an all-white jury after pleading self-defence.
• In 2004, Aboriginal man Cameron Doomadgee was arrested and died in a police cell on Palm Island, Queensland from injuries. In 2007, the arresting police officer Chris Hurley was charged with assault and manslaughter, but was later acquitted by an all-white jury.
• In 2019 in Yuendumu, Northern Territory, police officer Zachary Rolfe shot Walpiri man Kumanjayi Walker 3 times, killing him. This occurred shortly after Walker stabbed Rolfe with scissors. 3 days later, Rolfe was charged with murder. In 2022, Rolfe was acquitted unanimously. Juror candidates were drawn randomly. Rolfe's defence team used the majority of their 12 challenges to remove people of colour and those of Asian descent. In the end, the jury selected were all white with the exception of one young Asian woman, even though Indigenous people account for 30% of the Northern Territory population.

Canada

Canada has also struggled with the issue of racial discrimination in jury selection, especially for First Nations people. In 2001, Indian and Northern Affairs Canada (INAC) stopped producing band lists of First Nations people living on reserve for provincial jury rolls because of privacy concerns. The exclusion of this information from provincial jury rolls meant First Nations people living on reserves were not properly represented on juries.

The removal of First Nations people living on reserves from provincial jury rolls directly collided with the Supreme Court of Canada's 1991 decision of R. V. Sherrat [1991] 1 SCR 509 wherein the Court found that the "representativeness right" is an essential component of the right to trial by jury.  In particular, the Court pronounced that:

"The perceived importance of the jury and the Charter right to jury trial is meaningless without some guarantee that it will perform its duties impartially and represent, as far as is possible and appropriate in the circumstances, the larger community. Indeed, without the two characteristics of impartiality and representativeness, a jury would be unable to perform properly many of the functions that make its existence desirable in the first place"

The Supreme Court of Canada in 2015 evolved the issue of a "representative right" in jury trials in the case of R. V. Kokopenance, [2015] SCR 28 wherein the Court held that "an accused is not entitled to a jury that includes members of their own race or religion; rather, they are only entitled to a fair and honest process of random jury selection"

The issue of "representative right" is not dead or a decided issue. In 2018 the Federal Government introduced Bill C-75 in response to the Colten Boushie case. Bill C-75 eliminated peremptory challenges of jurors in criminal cases, thereby preventing the exclusion of jurors by both Crown and defense counsels.  Bill C-75 became law on June 21, 2019, which coincidentally happens to be National Indigenous Peoples Day in Canada.

United States

In the United States, racial discrimination in jury selection has a long history, even though a series of judicial decisions has determined that such discrimination violates the rights of defendants. While the racial composition of juries is not dictated by law, racial discrimination in the selection of jurors (regardless of the jury's ultimate composition) is specifically prohibited. However, the phrases "all-white jury" or "all-black jury" can raise a host of expectations – among them, the expectation that deliberations may be less than fair.

Current precedent and legal challenges

Further information: Jury selection in the United States § Faults within the jury selection process

Under the standard set forth by the United States Supreme Court in Strauder v. West Virginia and Batson v. Kentucky, the striking of a juror on account of race denies a defendant equal protection under the constitution. However the court held that a defendant is not entitled to a jury containing or lacking members of any particular race, and the striking of jurors for race-neutral reasons is permissible. This standard has been extended to civil trials in Edmonson v. Leesville Concrete Company and on the basis of gender in J.E.B. v. Alabama ex rel. T.B.

History

Following the American Civil War, the 13th, 14th, and 15th Amendments to the U.S. Constitution had abolished slavery and guaranteed basic civil rights to African-Americans; the Civil Rights Act of 1875 extended this to "public accommodation" and jury selection, including the establishment of criminal penalties for court officers who interfered:

Sec 4. That no citizen possessing all other qualification which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitude; and any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not more than five thousand dollars.

The United States Supreme Court ruled in 1880 in Strauder v. West Virginia that laws excluding black people from jury service violated the Equal Protection Clause of the 14th Amendment; yet in Virginia v. Rives (1879), the court denied an appeal from a black defendant who asked that black jurors be made at least one third of his jury, noting that an all-white jury was not in itself proof that a defendant's rights had been violated. Nevertheless, Southern states easily evaded Strauder and set up other ways than explicit legal bans to exclude black Americans from jury service.

In 1883, the Civil Rights Act of 1875 was overturned entirely by the Supreme Court, in an 8–1 decision. In 1896, the landmark Plessy v. Ferguson decision enshrined the unofficial civil code termed Jim Crow, ranging from separate but equal accommodation to voter disenfranchisement and jury exclusion; blacks were thus denied access to the public, political, and judicial spheres.

In the 1931 case of the Scottsboro Boys, nine black youths were accused of raping two white women, one of whom later recanted her testimony. Eight of the defendants were sentenced to death (although none would be executed). Defense attorney Samuel Leibowitz argued before the Alabama Supreme Court that black people had been kept off the jury rolls, and that names of black people had been added to the rolls after the trial to conceal this fact. The appeals in the case ultimately led to two landmark Supreme Court decisions. In Powell v. Alabama (1935), the Court ruled that criminal defendants are entitled to effective counsel, and in Norris v. Alabama (1935), that blacks may not be excluded systematically from jury service.

Despite Norris, the practice of excluding black people from juries did not disappear. In 1985, the Supreme Court in Batson v. Kentucky addressed a situation where a prosecutor had used his peremptory challenges to strike all four black candidates from a jury and obtained a conviction against the black defendant. The defendant was not able to demonstrate that the state's court system systematically excluded black people from juries but nonetheless raised due process and equal protection arguments in his particular case. In Batson, the court ruled that the defendant could make a prima facie case for purposeful racial discrimination in jury selection by relying on the record and that a State denies a defendant equal protection in a trial before a jury from which members of his race have been purposely excluded.

Batson did not eliminate the exclusion of black people from juries. Batson applied only in criminal trials, only to prosecutors, and only in situations where the challenged juror and the defendant were of the same race. The Mississippi Supreme Court noted, in reversing a 2004 murder conviction of a black man, where prosecutors used all 15 of their peremptory strikes to exclude black jurors: "racially motivated jury selection is still prevalent 20 years after Batson." In 2010, a white man in Alabama appealed his murder conviction and death sentence after a trial by 11 white jurors and 1 black juror, stating that jury selection was tainted by racial discrimination in excluding additional black jurors from his jury.

On December 15, 2016, the Kentucky Supreme Court, citing Batson, ruled that judges do not have authority to dismiss randomly selected jury panels for lack of racial diversity. The ruling arose from a decision by Jefferson County Circuit Court Judge Olu Stevens to dismiss a nearly all-white jury panel in a 2014 case involving a black defendant. When prosecutors in Louisville asked the Kentucky Supreme Court to review whether Judge Stevens abused his discretion in dismissing the all-white panel, Judge Stevens commented on Facebook that the prosecutor's request amounted to an attempt "to protect the right to impanel all-white juries." Judge Stevens also suggested "something much more sinister" and wrote that the prosecutor would "live in infamy." For his remarks, Judge Stevens received a 90-day suspension without pay, acknowledged he violated judicial canons and apologized for any statements that implied the prosecutor was racist.

Jury selection in the United States

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Jury_selection_in_the_United_States 

Jury selection in the United States is the choosing of members of grand juries and petit juries for the purpose of conducting trial by jury in the United States.

Voir dire

During voir dire, potential jurors are questioned by attorneys and the judge. It has been argued that voir dire is often ineffective at detecting juror bias. Research shows that biographic information in minimal voir dire is not useful for identifying juror bias or predicting verdicts, while attitudinal questions in expanded voir dire can root out bias and predict case outcomes. Extended voir dire in major controlled substance trials may increase accuracy in predicting individual verdicts from 50% to 78%.

Federal

In the federal system, jury selection is governed by the Jury Selection and Service Act and by the Federal Rules of Criminal Procedure in criminal cases, and by the Federal Rules of Civil Procedure in civil cases. In capital cases, each side gets twenty peremptory strikes. In other felony cases, the defendant gets ten peremptory strikes and the government gets six. In misdemeanor cases, each side has three peremptory strikes.

State

Each U.S. state has its own system, which is subject to the requirements of the U.S. Constitution.

Jury selection process

A typical jury selection process in the U.S.:

1. The county creates a list of potential jurors from records. Exactly which records are used vary by state, but they may include state tax filers, motor vehicle registrants, voter lists, or even utility lists.
2. The county selects randomly from the list of potential jurors and sends those people a juror summons to appear at a particular court on a particular date.
3. Potential jurors arrive at the courthouse and are placed in a juror pool.
4. When a particular court needs jurors, a set of people from the juror pool are drawn randomly and placed on a panel that is assigned to that court.
5. After instruction from the judge, panelists are chosen at random and placed on the jury.
6. The judge and attorneys ask the jurors questions to look for potential bias or prejudice (for example, knowledge of one of the subjects of the trial). Such jurors will be dismissed and replaced by a new member from the panel. (If necessary, additional panelists may be recruited from the juror pool.)
7. When a complete jury is formed, possibly with alternate jurors, the remaining panelists are dismissed and the trial begins.

Constitution

Further information: United States constitutional criminal procedure

Impartiality Clause

Main article: Sixth Amendment to the United States Constitution § Impartial jury

Vicinage Clause

Main article: Vicinage Clause

Federal criminal petit juries are required to be composed of residents of the state and federal judicial district wherein the crime was committed, which district shall have been previously ascertained by law.

Faults within the jury selection process

Bias

Further information: Racial discrimination in jury selection and Women in United States juries

The juror selection process holds the potential for discrimination in the selection of jurors and the final composition of juries. Claims that errors (of all types) were made during jury selection are among the most common of all grounds for criminal appeals. With regard to legal proceedings within the U.S. military, one argument has been advanced that selection of juries for courts-martial is subject to too much control by commanders, who can pick jurors who will be most likely to convict and hand down heavy penalties.

Batson v. Kentucky, 476 U.S. 79 (1986) banned peremptory challenges based solely on race, although the U.S. Supreme Court has since acted to mitigate its impact. The issue of racial bias in jury selection has been complicated by the question of whose rights are implicated; the potential juror's, or the defendant's. A Michigan Law Review article, published in 1978, asserted that young people, during that period, were under-represented on the nation's jury rolls.

A 2012 study from Duke University published in the Quarterly Journal of Economics investigated the effect of jury selection and racial composition on trial outcomes. The study found that black defendants (81%) are significantly more likely than whites (66%) to be convicted when there are no potential black jurors in the pool. Even with only one black member of the jury pool, conviction rates are almost identical (71% for blacks and 73% for whites). While 64% of cases had at least one black potential juror in the pool, only 28% of all trials had one or more black members on the seated jury. "Whenever attorneys use peremptory challenges to strike black members of the pool ... they forgo the possibility of excluding another potential juror with a similar ex ante probability of convicting," and the composition of the jury indirectly reflects that of the juror pool.

A 2018 study published in the University of Illinois Law Review found that prosecutors and judges tend to remove more African-Americans while defense attorneys remove more whites.

As of 2014, the 9th Circuit Court of Appeals has held that a peremptory challenge based on perceived sexual orientation is unconstitutional.

Lack of juror privacy

Jurors have very little privacy in the jury selection process. They are always required to disclose some personal information, such as their home addresses and whether they are US citizens, and they are asked for more specific information during voir dire. All information collected, whether through a written questionnaire or through questions answered orally in the courtroom, and regardless of whether the potential juror is eventually selected for the trial, is public, unless the judge issues an order to seal part of the record to protect a particular juror's privacy. The court has legitimate reasons for collecting this information (e.g., to determine whether the potential juror lives within the court's district and is therefore eligible to serve), but the information can be misused. Generally, it is legal for prosecutors, defense attorneys, and news media to use information disclosed to the court by a juror to run a criminal background check on jurors or to otherwise investigate jurors. The American Bar Association said in 2014 that it is ethical for lawyers on either side to check potential jurors' use of social media, but not to contact them through social media sites or to seek information about posts that are not public. These independent investigations usually happen without any notice to the jurors, the court, or other parties in the case, which circumvents judicial oversight of the jury selection process. Additionally, sometimes, this personal information has been used by scammers and harassers to commit crimes. As held by the US Court of Appeals in Chin v. Trustees of Boston University (2019), the jurors' names and home addresses can only be kept confidential after a verdict is announced if the judge makes a particularized finding of privacy concerns, such as a credible threat of violence against the jurors. A general concern about harassment in person or through social media is not enough to protect jurors' privacy.

Potential jurors are as sensitive to privacy concerns in court as they are in their everyday lives, and they do not always disclose sensitive information when asked, especially when they do not understand how that information is relevant to the trial at hand. In the early 19th century, potential jurors could not be asked any "questions tending to the disgrace or the dishonor of the juror" or tending to "infamy, or disgrace"; this tradition of requiring potential jurors to disclose only relevant facts, such as a personal connection to the specific case, continued through the 1970s. Since then, however, some potential jurors have been required to disclose, under oath and to the general public, a wide variety of personal information, including, among other things, their religious and political beliefs; which films or television shows they watch; any bumper stickers on their vehicles; their sexual history and sexual orientation; whether they have been the victim of rape, incest, or other abuse; their medical conditions and which medications they are taking or have taken in the past; whether they have taken illegal drugs; how much money they or their families have; whether they have declared bankruptcy; political contributions they have made; and past criminal convictions. Although these questions invade the potential jurors' privacy beyond what could be asked in court of most accused people and witnesses, potential jurors are generally obligated to answer such questions publicly and truthfully in the hope that this information will help the litigants identify prejudice among jurors. Brandborg v. Lucas (1995) held that jurors can be punished for contempt of court if they do not answer questions the court has determined are "reasonably calculated to discover an actual and likely source of prejudice, rather than pursue a speculative will-o-the-wisp", but not for questions that the court has not determined are potentially relevant to the case at hand.

Although it is technically possible for a potential juror to start legal proceedings about a question asked during voir dire, it is an impractical response, and the main defenses against intrusive questioning are the discretion of the judges, who typically allow any questions the lawyers want to ask, and the fear of the lawyers that a chosen juror may become biased against their side of the case because of their lack of respect for potential jurors during voir dire. Additionally, Sinclair v. United States (1929) held that defendants may not hire private detectives to surveil jurors during a trial.

Judicial activism

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Judicial_activism 

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. The term usually implies that judges make rulings based on their own views rather than on precedent. 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.

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". 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."; 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." Supreme Court Justice Anthony Kennedy said that, "An activist court is a court that makes a decision you don't like."

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."

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."

Debate

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. 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." 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. 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 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.

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 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.
• 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 President Donald Trump had the authority to dismantle the Deferred Action for Childhood Arrivals program initiated by Executive Order under former President Barack Obama.

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.

Outside the United States

See also: Judicial activism in the European Union, Judicial activism in Canada, and Criticism of the United States Supreme Court

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.

Canada

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. Judges are also charged to impartially apply the law as it is written.

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. 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.

Former Chief Justice of the Supreme Court of Canada Beverley McLachlin has stated that:

the charge of judicial activism may be understood as saying that judges are pursuing a particular political agenda, that they are allowing their political views to determine the outcome of cases before them. ... It is a serious matter to suggest that any branch of government is deliberately acting in a manner that is inconsistent with its constitutional role.

Such accusations often arise in response to rulings involving the Canadian Charter of Rights and Freedoms. Specifically, rulings that have favoured the extension of gay rights, have prompted accusations of judicial activism. Justice Rosalie Abella is a particularly common target of those who perceive activism on the Supreme Court of Canada bench.

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. The judgment was written by Justice Deschamps with a tight majority of 4 against 3.

European Union

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. 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.

The Court can only practice judicial activism to the extent the EU Governments leave room for interpretation in the treaties.

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.

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.  Ireland voted on the Lisbon Treaty a second time in 2009, with a 67.13% majority voting Yes to the treaty.

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 as criticized. New York Times writer Gardiner Harris sums this up as

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, 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, 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 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. 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

See also: 2023 Israeli judicial reform

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. 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.

United Kingdom

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. 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, 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. 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 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. 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.

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. 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.

Letter and spirit of the law

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Letter_and_spirit_of_the_law 

The letter of the law and the spirit of the law are two possible ways to regard rules, or laws. To obey the letter of the law is to follow the literal reading of the words of the law, whereas following the spirit of the law is to follow the intention of why the law was enforced. Although it is usual to follow both the letter and the spirit, the two are commonly referenced when they are in opposition. "Law" originally referred to legislative statute, but in the idiom may refer to any kind of rule.

Intentionally following the letter of the law but not the spirit may be accomplished through exploiting technicalities, loopholes, and ambiguous language.

Legal research

Violating the perceived intention of the law has been found to affect people's judgments of culpability above and beyond violations of the letter of the law such that (1) a person can violate the letter of the law (but not the spirit) and not incur culpability, (2) a person can violate the spirit of the law and incur culpability, even without violating the letter of the law, and (3) the greatest culpability is assigned when both the letter and the spirit of the law are violated.

Shakespeare

Portia and Shylock (1835) by Thomas Sully

William Shakespeare wrote numerous plays dealing with the letter-versus-spirit antithesis, almost always coming down on the side of "spirit", often forcing villains (who always sided with the letter) to make concessions and remedy. In one of the best known examples, The Merchant of Venice, he introduces the quibble as a plot device to save both the spirit and the letter of the law. The moneylender Shylock has made an agreement with Antonio that if he cannot repay a loan, he will have a pound of flesh from him. When the debt is not repaid in time Portia at first pleads for mercy in a famous speech: "The quality of mercy is not strain'd, It droppeth as the gentle rain from heaven Upon the place beneath. It is twice blest: It blesseth him that gives and him that takes." (IV, i, 185). When Shylock refuses, she finally saves Antonio by pointing out that Shylock's agreement with him mentioned no blood, and therefore Shylock can have his pound of flesh only if he sheds no blood.

U.S. constitutional law

Interpretations of the U.S. Constitution have historically divided on the "letter versus spirit" debate. For example, at the founding, the Federalist Party argued for a looser interpretation of the Constitution, granting Congress broad powers in keeping with the spirit of the broader purpose of some founders (notably including the Federalist founders' purposes). The Federalists would have represented the "spirit" aspect. In contrast, the Democratic-Republicans, who favored a limited federal government, argued for the strict interpretation of the Constitution, arguing that the federal government was granted only those powers enumerated in the Constitution, and nothing not explicitly stated; they represented the "letter" interpretation.

Modern constitutional interpretation also divides on these lines. Currently, Living Constitution scholars advocate a "spirit"-esque interpretative strategy, although one grounded in a spirit that reflects broad powers. Originalist or Textualist scholars advocate a more "letter"-based approach, arguing that the Amendment process of the Constitution necessarily forecloses broader interpretations that can be accomplished by passing an amendment.

The Bible

See also: Law and Gospel

The 1st century letter of Saint Paul to the Corinthians (specifically 2 Corinthians 3:6) refers to the spirit and letter of the law. Though it is not quoted directly, the principle is applied using the words "spirit" and "letter" in context with the legalistic view of the Hebrew Bible. This is the first recorded use of the phrase.

In the New Testament, Pharisees are seen as people who place the letter of the law above the spirit (Mark 2:3–28, 3:1–6). Thus, "Pharisee" has entered the language as a pejorative for one who does so; the Oxford English Dictionary defines 'Pharisee' with one of the meanings as "A person of the spirit or character commonly attributed to the Pharisees in the New Testament; a legalist or formalist". Pharisees are also depicted as being lawless or corrupt (Matthew 23:38); the Greek word used in the verse means lawlessness, and the corresponding Hebrew word means fraud or injustice. However, the Hebrew word "Perushim" from which "Pharisee" is derived, actually means "separatists", referencing their focus on spiritual needs versus worldly pleasures.

In the Gospels, Jesus is often shown as being critical of Pharisees. Not all Pharisees, nor all Jews of that time, were legalistic. Though modern language has used the word Pharisee in the pejorative to describe someone who is legalistic and rigid, it is not an accurate description of all Pharisees. The argument over the "Spirit of the Law" vs. the "Letter of the Law" was part of early Jewish dialogue as well.

The Parable of the Good Samaritan (Luke 10:25–37) is one of the New Testament texts to address this theme. The passage concerns a dialogue between Jesus and an "expert in the law" or "lawyer". As described in verse 25 ("a certain lawyer stood up and tested Him saying, Teacher what must I do to inherit eternal life?," NKJV), the intent of the dialogue was to trap Jesus into making statements contrary to the law. Jesus responds by posing the question back to the lawyer, as already having knowledge of the law, ("What is written in the law?" verse 26) The lawyer quotes Deuteronomy 6:5 "You shall love the LORD your God with all your heart, with all your soul, with all your strength, and with all your mind and your neighbor as yourself.", NKJV) and Leviticus 19:18. The question "Who is my neighbor?", that follows in verse 29, is described as being asked with the goal of self-justification.

It is then that Jesus responds with the story of a man beaten by robbers who is ignored by a Priest and a Levite, but then rescued and compassionately cared for by a Samaritan. Priests and Levites were Israelites whose qualifications and duties were very meticulously set forth in Mosaic law, (Leviticus 10, and Numbers 5-8) while Samaritans were descended from Israelites who had intermarried with their Babylonian captives and had been forced to establish a sect with an alternative interpretation of the Law. In the story, both the Priest and Levite follow their prescribed regulations dutifully, yet do not help the injured traveler, even crossing to the other side of the road to avoid possible rule violations. The Samaritan, whose very existence is based on a refutation of Jewish law, (specifically those post-Pentateuchal biblical books that identify Mount Moriah as the proper place of worship specified in Deuteronomy 12; the Samaritans considered only the Pentateuch canon, and worshipped Yahweh in their temple on Mount Gerizim) goes above and beyond simply tending to the injured man. He takes him to an inn and gives money for the man's care, promises and then actually does return to inquire about the man, and pay any overage incurred. Jesus concludes by asking the lawyer which of the men was a "neighbor" to the beaten traveller, to which the reply was "the one who showed compassion". Then Jesus says to him "go and do likewise".

According to Jeremiah, "the qualities of the new covenant expounded upon the old are: a) It will not be broken; b) Its law will be written in the heart, not merely on tablets of stone; c) The knowledge of God will deem it no longer necessary to put it into written words of instruction." According to Luke (Luke 22:20), and Paul, in the first epistle to the Corinthians (1 Corinthians 11:25), this prophecy was fulfilled only through the work of Jesus Christ, who said "This cup is the new covenant in my blood, which will be shed for you." Christ did not come to abolish the law but to fulfill it. His purpose was to encourage people to look beyond the "letter of the law" to the "spirit of the law"...the principles behind the commandments and the law's intention. Jesus quotes the book of Deuteronomy and Leviticus: "All the Law can be summed up in this: to love God with all your heart, all your mind and all your soul, and to love your neighbor as yourself" (paraphrased).

Gaming the system

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See also: Legal loophole

Gaming the system, also called "rules lawyering", is a pejorative phrase applied to someone who follows the letter of the law to obtain an outcome the speaker finds immoral or contrary to the spirit of the law. There are two reasons why this can be possible. A body of law may have been formulated in a way that permits ambiguity, or else there may be limitations in the law's scope or jurisdiction. For example, an offshore bank account can be used to reduce domestic tax obligations in some countries.

Modern Day Usage

During the COVID-19 pandemic, Singaporean Prime Minister Lee Hsien Loong urged Singaporeans to comply not just with the letter of the Circuit Breaker rules, but the spirit behind why these rules had to be implemented.

Textualism

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Textualism 

 

Textualism is a formalist theory in which the interpretation of the law is based exclusively on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as intention of the law when passed, the problem it was intended to remedy, or significant questions regarding the justice or rectitude of the law.

Definition

The textualist will "look at the statutory structure and hear the words as they would sound in the mind of a skilled, objectively reasonable user of words." The textualist thus does not give weight to legislative history materials when attempting to ascertain the meaning of a text. Textualism is often erroneously conflated with originalism, and was advocated by United States Supreme Court Justices such as Hugo Black and Antonin Scalia; the latter staked out his claim in his 1997 Tanner Lecture: "[it] is the law that governs, not the intent of the lawgiver." Oliver Wendell Holmes Jr., although not a textualist himself, well-captured this philosophy, and its rejection of intentionalism: "We ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used ... We do not inquire what the legislature meant; we ask only what the statutes mean."

Textualists argue courts should read the words of a statutory text as any ordinary Member of Congress would have read them. They look for the meaning "that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris [the body of law]." The textualist cares about the statutory purpose to the extent that is suggested from the text.

Textualist judges have contended, with much practical impact, that courts should not treat committee reports or sponsors' statements as authoritative evidence of legislative intent. These judges base their resistance to that interpretive practice on two major premises: first, that a 535-member legislature has no "genuine" collective intent concerning the proper resolution of statutory ambiguity (and that, even if it did, there would be no reliable basis for equating the views of a committee or sponsor with the "intent" of Congress as a whole); second, that giving weight to legislative history offends the constitutionally mandated process of bicameralism and presentment.

— John F. Manning, "Textualism as a Nondelegation Doctrine", 97 Colum. L. Rev. 673, 1997, JSTOR 1123360

Strict constructionism is often misused by laypersons and critics as a synonym for textualism. Nevertheless, although a textualist could be a strict constructionist, these are distinctive views. To illustrate this, we may quote Justice Scalia, who warns that "[t]extualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be... A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means." Similarly, textualism should not be confused with the "plain meaning" approach, a simpler theory used prominently by the Burger Court in cases such as Tennessee Valley Authority v. Hill, which looked to the dictionary definitions of words, without reference to common public understanding or context.

Methods

Textualism looks to the ordinary meaning of the language of the text, but it looks at the ordinary meaning of the text, not merely the possible range of meaning of each of its constituent words (see Noscitur a sociis):

The statute excludes only merchandise "of foreign manufacture," which the majority says might mean "manufactured by a foreigner" rather than "manufactured in a foreign country." I think not. Words, like syllables, acquire meaning not in isolation but within their context. While looking up the separate word "foreign" in a dictionary might produce the reading the majority suggests, that approach would also interpret the phrase "I have a foreign object in my eye" as referring, perhaps, to something from Italy. The phrase "of foreign manufacture" is a common usage, well understood to mean "manufactured abroad."

— K-Mart v. Cartier, 486 U.S. 281, 319 (1988) Scalia, J., concurring in part and dissenting in part

As an illustrative example, Justice Scalia refers to a case in which the law provided for a longer sentence when the defendant "uses a firearm" "during and in relation to" a "drug trafficking crime." In the case, the defendant had offered to trade an unloaded gun as barter for cocaine, and the majority (wrongly, in his view) took this meeting the standard for the enhanced penalty. He writes that "a proper textualist" would have decided differently: "The phrase 'uses a gun' fairly connoted use of a gun for what guns are normally used for, that is, as a weapon. As I put the point in my dissent, when you ask someone, 'Do you use a cane?' you are not inquiring whether he has hung his grandfather's antique cane as a decoration in the hallway." Justice Scalia has also written:

The meaning of terms on the statute books ought to be determined, not on the basis of which meaning can be shown to have been understood by a larger handful of the Members of Congress; but rather on the basis of which meaning is (1) most in accord with context and ordinary usage, and thus most likely to have been understood by the whole Congress which voted on the words of the statute (not to mention the citizens subject to it), and (2) most compatible with the surrounding body of law into which the provision must be integrated – a compatibility that, by a benign fiction, we assume Congress always has in mind. I would not permit any of the historical and legislative material discussed by the Court, or all of it combined, to lead me to a result different from the one that these factors suggest.

— Green v. Bock Laundry Mach. Co., 490 U.S. 504, 528 (1989) Scalia, J., concurring

Textualists do not, generally, accept the authority of the Courts to "refine" statutes:

Even if we were to assume, however, contrary to all reason, that every constitutional claim is ipso facto more worthy, and every statutory claim less worthy, of judicial review, there would be no basis for writing that preference into a statute that makes no distinction between the two. We have rejected such judicial rewriting of legislation even in the more appealing situation where particular applications of a statute are not merely less desirable but in fact raise "grave constitutional doubts." That, we have said, only permits us to adopt one rather than another permissible reading of the statute, but not, by altering its terms, "to ignore the legislative will in order to avoid constitutional adjudication.

— Webster v. Doe, 486 U.S. 592, 619 Scalia, J., dissenting

Textualists acknowledge the interpretive doctrine of lapsus linguae (slip of the tongue), also called "scrivener's error." This doctrine accounts for the situation when on the very face of the statute, it is apparent that there is a mistake of expression. (See, e.g., United States v. X-Citement Video, 513 U.S. 64) (1994) (Scalia, J., dissenting) ("I have been willing, in the case of civil statutes, to acknowledge a doctrine of 'scrivener's error' that permits a court to give an unusual (though not unheard of) meaning to a word which, if given its normal meaning, would produce an absurd and arguably unconstitutional result") and even break it (see, e.g., Green v. Bock Laundry Machine Co., 490 U.S. 504, 527) (1989) (Scalia, J., concurring) ("We are confronted here with a statute which, if interpreted literally, produces an absurd, and perhaps unconstitutional, result. Our task is to give some alternative meaning to the word "defendant" in Federal Rule of Evidence 609(a)(1) that avoids this consequence; and then to determine whether Rule 609(a)(1) excludes the operation of Federal Rule of Evidence 403.") Other textualists might reach alternative conclusions. Scalia's apparent inconsistency is perhaps explained by his choice to sometimes adhere to the more venerable judicial canons of interpretation, such as the constitutional avoidance canon.

The word "textualism" was first used by Mark Pattison in 1863 to criticize Puritan theology, according to the Oxford English Dictionary.^[10] Justice Robert Jackson first used the word "textualism" in a Supreme Court opinion a century later in Youngstown Sheet & Tube Co. v. Sawyer.

Australia

Textualism was influential in Australia, and was particularly prominent in the interpretative approach of Sir Garfield Barwick. Amendments to the Acts Interpretation Act 1901 have rejected key elements of textualism, stating that statements made in the Second Reading speech by Ministers introducing an Act may be used in the interpretation of that act.

Textualism v. purposivism

Purposivism is the perspective of statutory interpretation in which the judges should construe statutes to execute their legislative purpose. Textualism is the perspective of statutory interpretation in which the courts should read the words of that statutory text as any ordinary member of congress would have read them.