Judicial activism

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Judicial Activism is the tendency of some judges to take a flexible view of their power of judicial interpretation, especially when such judges import subjective reasoning that displaces objective evaluation of applicable law. The term is usually used pejoratively to describe decisions that are perceived to endorse a particular agenda. Whether a decision is characterized as judicial activism is often a matter of political polemic. Although alleged activism may occur in many ways, the most debated cases involve courts exercising judicial review to strike down statutes as unconstitutional. Views about constitutional interpretation abound, ranging from strict constructionism to the living constitution, and therefore, in practice, any controversial decision striking down a statute may be labeled by the decision's critics as judicial activism. The phrase traditionally has represented a call for judicial restraint.

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[edit] Definition

According to Merriam-Webster's Dictionary of Law, judicial activism is "the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent".[1] According to Black's Law Dictionary, judicial activism is "a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usu. with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent." Different legal scholars and judges may have other definitions of judicial activism.

In practice, when an American politician labels a judge an "activist judge", it may mean that the judge has simply made an important decision that the accusing politician disagrees with, or it may mean that the judge has transgressed the proper bounds of the judiciary. The term "activist judge" is sometimes little more than a term of political criticism, but it may also be an accurate criticism of the actual motivations of the judge whose decision is in question. Alternatively, a judge may legitimately feel bound by an activist decision of a higher court, according to principles of vertical stare decisis.

[edit] Background

Detractors of judicial activism charge that it usurps power of the legislature, thereby diminishing the rule of law and democracy. They argue that an unelected judicial branch has no legitimate grounds to overrule policy choices of duly elected representatives, absent a real conflict with the constitution.

Defenders of judicial prerogatives say that many cases of "judicial activism" merely exemplify judicial review, and that courts must uphold the constitution and strike down any statute that violates the constitution. They say that it is the duty of courts to protect minority rights and to uphold the law, notwithstanding the political sentiments of the day, and that constitutional democracy is far more than just majority rule.

However, detractors of judicial activism retort that neither democracy nor the rule of law can exist when the law is merely what judges say it should be. They argue that the discretion of judges must be limited (e.g. by the intentions of lawmakers), or else any group of people engaged in any behavior could become a judicially protected minority, and any law could be subverted by the predilections of unelected judges.

In the United States, the respective roles of the judiciary, legislature, and executive are set out in the articles of the constitution on the federal level, and similarly on the state level. Under the principle of separation of powers, the judiciary is the primary judge of the meaning of the state and federal constitutions. The executive, legislature and judiciary are not allowed to violate the constitution, but it is the judiciary that primarily has final say on when that has happened and how to remedy the situation. In doing so, judges must not go beyond the constitution, or beyond the rules of reason. The law-making role is defined as the preserve of the legislature, and thus when judges venture into this role through judicial review (or into the role of the executive branch through orders requiring extensive judicial oversight of government functions), they effectively usurp the prerogatives of other branches and levels of government. Nevertheless, if the legislature has passed a law that clearly violates the federal or state constitution, it is the duty of the courts to overturn that law through judicial review.

Some proponents of a stronger judiciary argue that the judiciary should grant itself an expanded role to counterbalance the effects of 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 any particular minority through its elective powers. The opposite of judicial activism is judicial lethargy, and the proper judicial role is somewhere between.

For information about judicial activism in Canada, please see Judicial activism (Canada).

[edit] Origins

"Arthur Schlesinger Jr. introduced the term 'judicial activism' to the public in a Fortune magazine article in January 1947," according to Keenan Kmiec in a 2004 California Law Review article. In his article, Kmiec discusses Schlesinger's article "The Supreme Court: 1947" from Fortune, January 1947. According to Kmiec:

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 Rutlege 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.

Keenan D. Kmiec, The Origin and Current Meanings of "Judicial Activism," 92 Cal. L. Rev. 1441, 1447 (2004).[2]

[edit] Methods

The methods by which judges engage in judicial activism, according to critics who make this accusation, include the following:

  • Overturning legislation passed by an elected legislature, using an interpretation of the constitution that critics believe is not clearly mandated or implied by the constitutional text.
  • Ruling against the text or intent of a statute, using what critics argue is an incorrect or overreaching interpretation.
  • Ruling against judicial precedent in a way that critics hold is a radical or unjustified departure from accepted interpretation.
  • Holding legislation unconstitutional based on what critics view as a clearly flawed precedent.
  • Selectively using obscure case law or foreign law, in preference to what is seen by critics as more pertinent case law or statutory law.
  • Use by state courts of a single subject rule to nullify legislation or state constitutional amendments, in what critics say is a questionable manner.

Michigan Supreme Court Justice Stephen Markman has drawn up a list of "several of the more prominent rhetorical devices that often cloak judicial fiats," in a September 19, 2005 article in National Review.[3]

  • Spirit of the Law: Where the language of a law conflicts with the policy preferences of a judge, it is common to claim that the "spirit of the law" compels the preferred outcome.
  • Balancing: The process of “balancing” rights and interests is mainly a legislative function, rather than a judicial function.
  • Public Policy: Judges will often resort to “public policy” as a way to bypass the words of the law.
  • Equity: Judges sometimes speak of “equity” as a means to circumvent the language of the law.
  • Ambiguity: While laws are sometimes truly ambiguous, they are not as ambiguous as some judges often find them to be.
  • Broad Construction: Judges often say that a law should be interpreted “liberally” or "broadly" or “narrowly” or “conservatively”, but the role of a judge is generally to interpret the text of a law “reasonably.”
  • Legislative History: Excessive reliance upon legislative history may allow the words of the lawmaking authority to be replaced by a “history” that was never enacted into law.

[edit] Judicial philosophies as judicial activism

[edit] The Living Constitution as judicial activism

Some critics argue that the living constitution approach to judicial philosophy is necessarily activist. Their argument is that the living constitution philosophy endorses any ruling, so long as the judge can argue that his ruling helps the constitution to grow and evolve. Critics say that this can violate a judge's sworn allegiance to uphold the constitution, because, in effect, it encourages judges to write their own constitutions. Furthermore, they argue that the living constitution leads to unpredictable rulings, making it impossible to obey the law. One possible outcome of this confusion is the threat of frivolous lawsuits. [4]

Critics of the living constitution also argue that it violates the principle of separation of powers. They say that because the purpose of the judiciary is to interpret existing laws and policies, any action which is not done strictly in accordance with existing law must be activism. Indeed, they continue, Congress is explicitly empowered by the Constitution to make law, and the Constitution deliberately has an amendment process in Article V. Consequently, any change to the laws or the Constitution outside this framework is itself illegal.

Usually these critics are originalists. Originalists of all types reject the idea that contemporary standards should determine the meaning of the Constitution, and consequently reject the idea that the meaning of the Constitution can change (outside, that is, of the Article V amendment process). Because of this they believe that the living constitution is inherently activist.

[edit] Originalism as judicial activism

Main article: Constitution in exile

Some critics of originalism have charged that a coalition of conservatives and libertarians seek to overturn New Deal-era Supreme Court rulings whose expansive interpretations of constitutional Congressional power allowed the emergence of the modern regulatory and welfare state. Conservatives argue that these charges are overblown.[5] The Supreme Court's recent refusal in Gonzales v. Raich to limit the scope of Congress's Commerce Clause power, with Justice Antonin Scalia concurring in the judgment, seems to have temporarily quelled fears of a sudden jurisprudential shift.

[edit] Quotes on judicial activism

[edit] Statements by Judges

All of the current justices of the United States Supreme Court have seemingly disavowed judicial activism at certain points. Chief Justice John Roberts' disavowal of judicial activism is well-known from his confirmation hearing ("Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.”). Roberts has stated that his view of judicial activism stems from that of Justices Felix Frankfurter and John Marshall Harlan II. Roberts put it this way:

"[C]ourts should not intrude into areas of policy making reserved by the Constitution to the political branches. As Justice Frankfurter has noted, 'Courts are not representative bodies. They are not designed to be a good reflex of a democratic society.' In our democratic system, responsibility for policy making properly rests with those branches that are responsible and responsive to the people. It was precisely because the Framers intended the judiciary to be insulated from popular political pressures that the Constitution accords judges tenure during good behavior and protection against diminution of salary. To the extent the term judicial activism is used to describe unjustified intrusions by the judiciary into the realm of policy making, the criticism is well-founded.
"At the same time, the Framers insulated the federal judiciary from popular pressure in order that the courts would be able to discharge their responsibility of interpreting the law and enforcing the limits the Constitution places on the political branches. Thoughtful critics of 'judicial activism' — such as Justices Holmes, Frankfurter, Jackson, and Harlan — always recognized that judicial vigilance in upholding constitutional rights was in no sense improper 'activism.' It is not 'judicial activism' when the courts carry out their constitutionally-assigned function and overturn a decision of the Executive or Legislature in the course of adjudicating a case or controversy properly before the courts. ...
"[J]udges must be constantly aware that their role, while important, is limited. They do not have a commission to solve society's problems, as they see them, but simply to decide cases before them according to the rule of law. When the other branches of government exceed their constitutionally mandated limits, the courts can act to confine them to the proper bounds. It is judicial self-restraint, however, that confines judges to their proper constitutional responsibilities."[6]

Justice John Paul Stevens referred in 1983's Michigan v. Long to "my belief that a policy of judicial restraint - one that allows other decisional bodies to have the last word in legal interpretation until it is truly necessary for this Court to intervene - enables this Court to make its most effective contribution to our federal system of government." Although seemingly a disavowal of judicial activism, this statement by Justice Stevens may alternatively be viewed as either a neutral or activist statement on the subject, since it would allow the Court to intervene whenever it believes "necessary".

Justice David Souter wrote in his opinion in 1997's Washington v. Glucksberg, "We therefore have a clear question about which institution, a legislature or a court, is relatively more competent to deal with an emerging issue as to which facts currently unknown could be dispositive. The answer has to be, for the reasons already stated, that the legislative process is to be preferred...The experimentation that should be out of the question in constitutional adjudication displacing legislative judgments is entirely proper, as well as highly desirable, when the legislative power addresses an emerging issue like assisted suicide." Although seemingly a disavowal of judicial activism, this statement by Justice Souter may alternatively be viewed as either a neutral or activist statement on the subject, since it would allow the Court to displace legislative judgments about any issue that has already "emerged".

Justice Ruth Bader Ginsburg has written, "Measured motions seem to me right, in the main, for constitutional as well as common law adjudication. Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable," in the context of arguing that the Court in Roe v. Wade displaced too much existing state abortion law too quickly. Although seemingly a disavowal of judicial activism, this statement by Justice Ginsburg may alternatively be viewed as either a neutral or activist statement on the subject, since it would allow the Court to accomplish gradually and incrementally what could otherwise be accomplished "swiftly".

Justice Stephen Breyer has averred a belief in judicial deference to democratic decision-making, for example in his book, Active Liberty: Interpreting Our Democratic Constitution. Thus, Breyer is often reluctant to join strong interpretations of the First or Fourteenth Amendments striking down laws if the laws at issue reflect considered democratic decision-making. Nevertheless, Breyer's book (pages 117-118) says that the content of the Bill of Rights has an "open-ended nature" due to the Ninth Amendment to the United States Constitution, and that stance is hardly one which would limit judicial power.

The late Justice Harry Blackmun explicitly disavowed judicial activism in his dissent in 1972's Furman v. Georgia, which overturned existing state capital punishment statutes. Blackmun, while arguing that "I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty", wrote, "Although personally I may rejoice at the Court's result, I find it difficult to accept or to justify as a matter of history, of law, or of constitutional pronouncement." Later in his career, however, Blackmun consistently voted to hold capital punishment regimes unconstitutional, thus disavowing his earlier disavowal.

Eleventh Circuit Judge William H. Pryor, Jr. discussed judicial activism in a Wall Street Journal piece on October 8, 2006.[7] Here is an excerpt:

"Contemporary criticisms of the judiciary are relatively mild....During the civil rights struggle, the ostracism and abuses suffered by federal judges in the Deep South--including Frank Johnson, John Minor Wisdom and Skelly Wright--were far worse than the current criticisms of judicial activism....Many contemporary criticisms of judicial decisions by politicians are no more heated than the criticisms written by jurists in dissenting opinions....Occasionally criticism of judicial decisions is essential to the progress of our constitutional republic."

[edit] Statements by Presidents

Thomas Jefferson saw activist judges as the bane of the federalist concept of individual and states' rights:

"The Judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our Constitution from a coordination of a general and special government to a general and supreme one alone." Letter to Thomas Ritchie (1820)

Abraham Lincoln believed that activist Supreme Court justices were biased by partisanship, regarding slavery:

"[W]e think the Dred Scott decision is erroneous. We know the court that made it, has often over-ruled its own decisions, and we shall do what we can to have it to over-rule this. We offer no resistance to it. Judicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession. If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias...it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent."Speech on the Dred Scott Decision (June 26, 1857)

Franklin Roosevelt saw activist Supreme Court justices as a threat to the New Deal:

"In the last four years the sound rule of giving statutes the benefit of all reasonable doubt has been cast aside. The Court has been acting not as a judicial body, but as a policy-making body....The Court in addition to the proper use of its judicial functions has improperly set itself up as a third house of the Congress - a super-legislature, as one of the justices has called it - reading into the Constitution words and implications which are not there, and which were never intended to be there." Fireside Chat (March 9, 1937)

Ronald Reagan believed that activist judges were usurping the power of the people:

"I intend to go right on appointing highly qualified individuals of the highest personal integrity to the bench, individuals who understand the danger of short-circuiting the electoral process and disenfranchising the people through judicial activism." Remarks During a White House Briefing for United States Attorneys (October 21, 1985)

[edit] Other views about judicial activism

[edit] Sunstein/Gewirtz View

Liberal scholars such as Cass Sunstein and Paul Gewirtz have attempted to redefine judicial activism neutrally to apply simply to a decision of the judiciary to strike down legislative acts. A 2005 study of the Supreme Court using this definition found that Justices Thomas, Kennedy and Scalia voted to strike down the greatest number of Congressional provisions, while Stevens, Ginsburg and Breyer voted to strike down the smallest.[8]

Conservatives have criticized this study as irrelevant to the question of judicial activism, because the definition does not distinguish between striking down legislative acts within the generally accepted role of judicial review as part of the judicial branch's constitutional duty of interpreting the law. [9]

[edit] David Strauss's View

Professor David Strauss has argued that judicial activism can be narrowly defined as one or more of three possible things:[10]

  1. Overturning laws as unconstitutional (Sunstein/Gewirtz)
  2. Overturning judicial precedent
  3. Ruling against a preferred interpretation of the Constitution

Strauss's argument is that the first two definitions apply equally to conservatives and liberals, and that the third definition is simply indeterminate, because the judge is presumably ruling according to his or her own good-faith interpretation of the Constitution.

Conservatives argue that these definitions focus too heavily on questions of interpretation, rather than the different question of whether judicial action is outside the scope of the judicial power. For example, the Strauss definitions arguably would not cover the controversial acts of a Tennessee federal district judge, John Nixon, who has placed the state's Medicaid program under judicial oversight under a lawsuit brought in his court.

[edit] Judicial activism and individual cases

Various cases and judicial shifts throughout the Supreme Court's history have prompted accusations of judicial activism or overreaching, such as the following:

[edit] Sources

[edit] Books

[edit] Legal books

  • Paul O. Carrese, 2003. The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism (Chicago: University of Chicago Press).
  • Duncan Kennedy, 1998. A Critique of Adjudication (Cambridge, MA: Harvard University Press).
  • 105th Cong., I @ Sess. I, 1997. Judicial Activism: Defining the Problem and its Impact: Testimony before the Subcommittee on the Constitution, Federalism & Property Rights (U.S. G.P.O., Supt. of Docs., Congressional Sales Office Publishers), 205pp. ISBN 0-16-055917-0
  • Sterling Harwood, 1996. Judicial Activism: A Restrained Defense (London: Austin & Winfield Publishers), 167pp. ISBN 1-880921-68-5. [11]www.sterlingharwood.com
  • Christopher Wolfe, 1997. Judicial Activism, 2nd ed. (Totowa, NJ: Rowman & Littfield Publishers, Inc.).
  • Kenneth M. Holland, editor, 1991. Judicial Activism in Comparative Perspective (Palgrave Macmillan).
  • Ronald Dworkin, 1988. Law's Empire (Cambridge, MA: Harvard University Press).
  • Alexander M. Bickel, 1986. The Least Dangerous Branch 2nd ed. (New Haven, CT: Yale University Press).
  • Arthur Selwyn Miller, 1982. Toward Increased Judicial Activism (Greenwood Press).
  • Ronald Dworkin, 1977. Taking Rights Seriously (Cambridge, MA: Harvard University Press).
  • Lino A. Graglia, 1976. Disaster by Decree (Ithaca, NY: Cornell University Press).
  • Michael Rebell and Arthur R. Block, 1982. Educational Policy Making and the Courts: An Empirical Study of Judicial Activism (Chicago: University of Chicago Press).
  • H.L.A. Hart, 1961. The Concept of Law (Oxford: Oxford University Press).

[edit] Popular books

[edit] External links

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