Four Dimensions of Judicial Activism

• Author: Kent Roach
• Pages: 97-111

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Four Dimensions

of

Judicial

Activism

The

next

time

people complain about judicial activism,

ask

them

to

tell

you

what they mean

by

this phrase.

If the

answer

is not

simply silence,

it

may be

interesting

and

surprising. Judicial activism

can be a

code

word

for

unarticulated

yet

strongly

felt

social anxieties. Judicial

activism

in the

United States

may be a

shorthand

way for

conservatives

to

express concerns about

a

liberal culture that allows abortion,

flag

burning,

and the

interconnected issues

of

crime

and

race. Judicial

activism debates

in

Australia

are

frequently concerned with Aboriginal

issues, those

in

Israel

often

revolve around

the

role

of

religion

in

public

life,

and

those

in the

United Kingdom

may

reflect

debates about that

nation's relation

to

Europe.

In

Canada

the

judicial activism debate

in the

1930s

was

tied

up in a

nationalist

and

centralist hostility towards

the

Judicial

Committee

of the

Privy Council

in

England. Western

alienation

from

the

governing elites

in

Ottawa,

including

the

Supreme

Court,

played

an

important role

in the way

that

the

Alberta Social Credit Party

in the

1930s

and the

Reform

Party

in the

1990s

defined

judicial activism

as a

problem. There

is

more

to

many discussions

of

judicial activism

than meets

the

eye.

Most

commentators never bother

to

define

precisely what they

mean

by

judicial activism.

The

accusation

of

judicial activism

is

thrown

around

to

bolster disagreements about particular judicial decisions

and

to

imply judicial overreaching,

if not

actual impropriety. Debates about

judicial

activism

can

be

frustrating

in

part because

of the

absence

of

def-

initions. Reliance

on the

shorthand code word

of

judicial activism

means

that

the

implicit

assumptions

that

are

made about judging,

rights,

and

democracy

are not

identified,

even though they

may be

con-

troversial.

It is too

much

to

expect agreement about what judging, rights,

and

democracy should entail

—

these

are

eternal questions

of

jurispru-

dence

and

politics.

However,

it is not too

much

to

expect that those

who

engage

in

debates about judicial activism should

define

what they mean

by

this

loaded

and

slippery term.

The

contrast

between judicial activism

and

restraint

has

been

used

as a

focus

for

complex debates about

the

nature

of

constitutional inter-

pretation

and the

degree

of

freedom

judges have when interpreting

the

text

of the

constitution

and

their

own

precedents. Those

who see

adju-

dication

as a

matter

of

following

the

clear intent

of

enacted

law

often

criticize

what

they

believe

to be the

exercise

of

unfettered

and

pre-