Judicial activism
Encyclopedia : J : JU : JUD : Judicial activism
| This section may not conform to the [Neutral point of view>neutral point of view] policy. A Wikipedian has [POV checknominated this section] to be checked for its neutrality. Discussion of this nomination can be found on the [judicial interpretation that critics consider to take on suspected political reasoning, rather than an evaluation of applicable law. The usefulness of the phrase has recently been called into question by liberals and conservatives alike.[[Citing sources citation needed]] This may be because, while the phrase traditionally represented a call for judicial restraint, it has recently been applied in much more diverse situations, even when courts have refused to intercede and strike down statutes. It has been suggested that this has effectively deprived the phrase of much of its previous meaning. Whether a particular decision is characterized as judicial activism is a matter of political polemic. Although alleged activism may occur in many ways, the most debated cases involve courts striking down laws as unconstitutional. The manner and extent to which a court should interpret the Constitution is a matter of great debate, with views on the correct approach ranging from strict constructionism to the Living Constitution. In the United States, Australia and Canada, the term may be used pejoratively to describe rulings or decisions which are perceived to endorse or implement a particular social or political agenda. In practice, any decision which is beyond expectations will be labeled as an instance of judicial activism. Detractors of judicial activism charge that judicial activism represents a usurption of the legislative powers of the legislature or, to the contrary, the abdication of the proper role of the courts. A path which, critics argue, leads to the demise of the rule of law and democracy. Those who assert the former point of view argue that the judicial branch, which is often unelected, has no legitmate grounds for overruling the policy choices of a duly elected branch of government. Others, critical of this perspective, note that many cases of "judicial activism" are actually a matter of judicial review. In particular, defenders argue that the courts are required to uphold the Constitution and to strike down any law passed by a legislature that violates the Constitution. Critics also note that judge-nominees are more thoroughly investigated by Congress and the President than any other official, pointing to the extensive nomination process undergone by nominees to senior position. They add that the founding Fathers deliberately isolated the judiciary from the casual passions that grip the electorate, and from the general popular ignorance of Constitutional rights and procedures. Those who define judicial activism as the latter, as the abdiction of the courts responsibilities, assert that it is the duty of the courts to protect minority rights and to uphold the laws of the land, notwithstanding the political sentiments of the day. Democracy, they argue, is far more than just majority rule. Critics of this perspective retort that democracy nor the rule of law can exist when the law is merely what a judge says it is. In other words, they argue that there has to be limits on the discretion of judges to interpret the law and, in particular, the courts must not interpret the law beyond the intentions of its framers or of the legislature. Otherwise, there is no distinction between the law, as it is, and the moral and political predilictions of unelected judges.
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BackgroundThe respective roles of the judiciary, legislature (U.S. Congress), and executive in the United States 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 contained in the Constitution, the judiciary is the judge of the meaning of the state and federal constitution. The executive, legislature and judiciary are not allowed to violate the constitution, but it is only the judiciary that has final say on when that has happened and how to remedy the situation. Judges must not go beyond the constitution. The law-making role is defined as the preserve of the legislature, and thus when judges venture into this role (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. If the legislature has passed a law that violates the federal or state constitution, it is the duty of the court to overturn that law through judicial review.Some proponents of a stronger judiciary argue that an expanded role of the judiciary should be used 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 view to judicial activism, that some judges are too narrowly confined, is known as judicial restraint. For Judicial Activism in Canada, please see Judicial activism (Canada). MethodsThe methods by which judges are said to engage in judicial activism by critics who make this accusation are as follows:
DefinitionAccording 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". 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 different definitions of judicial activism. Roberts/Frankfurter/Harlan ViewJohn Roberts, the Chief Justice of the United States Supreme Court, has stated that his view of judicial activism stems from that of Justices Felix Frankfurter and John Marshall Harlan II:
BreyerIn his book Active Liberty, Justice Stephen Breyer argues that conservative judges are willing to use a strict construction of the Constitution to frustrate the essentially democratic character of the Constitution. Sunstein/GewirtzLiberal 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.[link] Conservatives have criticized this study as irrelevant to the question of judicial activism, because (1) 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, and (2) because the Supreme Court is generally conservative, and because its jurisdiction is discretionary, the fact that liberal justices in the minority vote to strike down fewer legislative acts may simply reflect fewer opportunities to do so. [link] David Strauss critique of \"judicial activism\" as a conceptProfessor David Strauss has argued that judicial activism can be narrowly defined as one or more of three possible things:[link]
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. Judicial philosophies as judicial activismThe 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, 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. [link]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. Originalism as judicial activismSome critics of originalism have charged that a coalition of conservatives and libertarians seek judicial activist results that would overturn the New Deal. Conservatives argue that these charges are overblown. The Supreme Court's recent refusal to limit the scope of the Commerce Clause in Gonzales v. Reich, with Justice Antonin Scalia voting in the majority, seems to have temporarily quelled fears of a sudden jurisprudential shift. An Alternative View of Judicial ActivismSystemic v. Political Judicial ActivismObjectively defined “judicial activism” is not only the imposition of the personal views of a judge on society by creating common law (precedent) through his or her rulings. Actually a judge "making law from the bench" is quite rare and often overruled either by superior courts or the legislature. The two types of judicial activism can be differentiated by recognizing the difference between political judicial activism and systemic judicial activism. Political Judicial ActivismPolitical judicial activism usually occurs in lower courts where judges are elected. As elected officials they are far more influenced by powerful members of the community than by law. These cases are almost always discarded but the effect on the party who must fight these rulings into superior courts (appeal courts and state supreme courts) is great expense of time, money, and emotional energy. An excellent view of the role of judges and that of states choosing to elect judges in opposition to the federal constitutional preference of appointing them comes from Alexis De Tocqueville.
Systemic Judicial ActivismSystemic judicial activism results from those cases in which there is a "triangular process", meaning that the judge is somehow the "silent representative" of the state or other party in some action, from paralysis in the legislative process, or from a direct transfer of social policy from the legislative bodies to the judiciary. Triangular Process and the Court as Silent Representative of the StateA good example of the triangular process is a dissolution of marriage action (divorce) where the each party represents themselves (usually through counsel) and the judge represents the state and the children silently. This creates an "unseen conflict of interest" where the judge is now partial to what he believes, or precedent directs him to believe, is the "states vital interest" or the "best interest of the children". But in United States jurisprudence a judge is barred from advocating for any party. A judge cannot be an objective "trier of fact" and an advocate for a party, silent or otherwise, without being caught in a conflict of interest. It is unknown how the judge as attorney for the silent party concept crept into the legal system. Other good examples are those of civil rights and privacy legislation which concern the fourth and fourteenth amendments to the constitution. In cases of intrusion of privacy and freedom from search and seizure once the state has established a "vital interest" it is then only up to the judge to decide if the intrusion is justified and narrow enough to achieve the states goals. In this way the judge, unconsciously or otherwise, is saddled with being an advocate for the state in managing policy. He is not put in the position of determining objective legal standards to clear legal questions but he is now in the position of determining, not interpreting, state policy. In the formation of the United States state policy was to be declared in state constitutions and the United States constitution by amendment. Statutory law was intended to create specific instructions on how to carry out state policy declared in the constitution. The intent of a law cannot be a new declaration of state policy if one imposes the founders view of constitutional process. But there is no restriction on the legislative bodies declaring the meaning of amendments through statutes via intent. It is that they usually do not put this restriction on state policy when it is declared so that it can be tested by the courts. Some state policy is legitimate when it is clearly the duty of congress. For instance, to declare state policy concerning the spending of tax payer dollars to find alternate sources of energy is legitimate. To declare state policy where the civil rights of some group is concerned is usually not legitimate since providing rights for one group discriminates against another. When a judge is forced by the method of "declaration of vital interest" to determine and rule on such issues the court is foisted into a political and subjective realm where political and philosophical arguments carry weight. And when they decide on such issues they are accused of political judicial activism by the side whose arguments did not prevail. The problem of systemic judicial activism is partly caused by the legislative bodies creating wide and unclear vital interests and then transferring the responsibility, and repercussions, to the judicial branch. Another area where the court represents the state silently is in national security. National Security as a vital interest puts the judge in the position of protecting national interest not constitutional prohibitions. Special rights are assigned to national security organs which allow them to hide violations of, or to openly violate the constitutional rights of citizens. When the legislature directs a judge through statutory law to protect national security regardless of constitutional restrictions it creates a silent representative of the judge who now is no longer the protector and interpreter of the constitution but an advocate for the state. Passing the Buck and the Court as Test-BedInternet photography laws resulted from strong political interest group pressure on both parties in congress. Unable to pass meaningful legislation that would not interfere with other profit aspects of the Internet, especially that of adult erotica, the legislative bodies passed laws which they knew could not stand supreme court scrutiny. There are two reasons for this activity. First, the legislature can pass the responsibility for being unable to solve problems onto the courts. The second more legitimate use of the courts is that of “floating legal balloons“. By passing legislation they know will be challenged they can determine from the supreme courts rulings a means to forge legislation which is constitutional. Social and Technological EvolutionAnother objective view of systemic judicial activism is where society changes values or technological advances change the understanding of an issue visa-vi the constitution. The courts are then saddled first with these issues by the pursuit of novel lawsuits instead of the legislative bodies through recognition of novel issues. Social policy and philosophy are inherent in these types of lawsuits and the courts are again determining the effects of their decisions on society and not clear legal constitutional, statutory, and common law issues. It is said that the United States is the most litigious society in the world - maybe even in history. If one views people availing themselves of the courts to resolve controversies rather than taking it upon themselves to get vindication then this can be seen as a positive aspect of our society. But the instant gratification the courts seem to offer creates an incentive in the public to take issues of novel law to the courts first and not to the legislatures. The drive to “sue to make law” also results from the legislative bodies being too slow and cumbersome to accommodate new issues rapidly and effectively. This is not an organizational problem since this is what the committee structure was intended to provide. The slowness of the legislative process is the result of the unresponsiveness of legislators, the effect of powerful interests groups, paralyzing divided government, or a simple lack of courage to make decisions which although more in line with the constitution go against the strong political grain of a powerful group or the majority of society itself. It is also much easier and cost effective to control law via the courts for powerful interest groups. In a for-profit-legal system subsidizing law suits is much less expensive than the cost of controlling legislation and involves less risk. Last Seat JurisdictionIn some socio-political-legal controversies the issue is analogous to a hot potato which is thrown from one seat of power to another. The administrative body, (the president) being elected, faces an electorate that is strongly divided, sometimes violently divided, and fears taking sides. The legislative body being made up of representatives of the many districts is itself divided - also sometimes violently. In these cases, most notably civil rights for African Americans, the hot potato lands in the seat of the appeals courts and supreme court of the United States. By the time the courts hear these cases social unrest threatens to destabilize society. In such cases the judge is put in the unenviable position of being the pressure release valve. Probably the most popular example of systemic judicial activism resulting from hot seat issues was where an appeals court judge in Boston ordered school busing of minorities and forced the state to allocate funds to cure violations of the civil rights act and preceding judgements (common law). Although he probably did not have the constitutional power or jurisdiction to order such an act it was not allowed challenge under what should now be recognized as a “seat of last resort jurisdiction”. Without this pressure valve and the ability to use temporary unconstitutional methods to solve widespread violations of constitutional rights social pressures can gain so much momentum that civil unrest or even civil war can result. ConclusionThe conclusion one could make from this view is that the majority of judicial activism today does not occur from the judicial branch usurping power from other branches as much as it occurs from other branches transferring power to the judicial branch for decisions they do not find it in their best interest to make. Or from fourth estate, or fourth branch (federal agencies) imposing legislation of vital interest in which the court is made advocate of the state. Perhaps the solution to systemic judicial activism may be to establish the duty of the people of the United States, through their elected officials, to insure that the legislative process stays ahead of the judicial process. It may be advantageous to hear novel issues in the legislative process first and rapidly. More parties are available to testify, more committees are available to hear new issues, more representatives are accessible by the general public for the sounding of issues. The political judicial activism Thomas Jefferson warned of is not the type of systemic judicial activism suffered today. He warned of judges who were not constructionist where clear legal issues of law were before them and who determined the intent of the constitution based on their personal values. Today we have the problem of judges being assigned the role of social arbitrators by a subtle but profound shift which occurred by imperceptible degrees over history. That being the shift of legislative responsibility from the legislative and administrative branch to the courts, and in part, the vast assignment of law making powers to the fourth branch who then force the society, not the legislative bodies, to resolve controversies in court. Reviewing the above sections which go to the current view of judicial activism may lead the reader to a more balanced perspective of the concept. Judicial activism and individual casesVarious cases and judicial shifts throughout the Supreme Court's history have been accused of being judicial activism or overreaching. For the debates over these cases, see the main article associated with those cases or movements.
Quotes on judicial activismSupreme CourtAll of the current justices of The U.S. Supreme Court have explicitly 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.”), but he gave a lengthier [written answer] that sets out his philosophy in detail.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." 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." 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. 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. 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.) PoliticiansThomas Jefferson saw activist judges as the bane of democracy, writing:
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