Four Dimensions of Judicial Activism

• Author: Kent Roach
• Pages: 111-127

111

chapter six

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 conserva-

tives to express concerns about a liberal culture that allows abortion,

f‌lag burning, and the interconnected issues of crime and race. Judi-

cial activism debates in Australia are frequently concerned with Ab-

original 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 hostil-

ity 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 discus-

sions 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 th rown

around to bolster disagreements about particular judicial decisions and

to imply judicial overreaching, if not actual impropriety. Debates about

judicial activism can be fr ustrating in part because of the absence of

def‌initions. Reliance on the shorthand code word of judicial activism

part one: what is judicial activism?

112

means that the implicit assumptions that are made about judging,

rights, and democracy are not identif‌ied, even though they may be

controversial. It is too much to expect agreement about what judging,

rights, and democracy should entail — these are eternal questions of

jurisprudence 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 restrai nt has been used

as a focus for complex debates about the nature of constitutional in-

terpretation and the degree of freedom judges have when interpreting

the text of the constitution and their own precedents. Those who see

adjudication as a matter of following the clear intent of enacted law

often criticize what they believe to be the exercise of unfettered and

presumptively illegitimate judicial discretion as judicial activism. The

term judicial activism has also been used to descr ibe bold and broad

techniques of judicial decision making, with judicial rest raint being as-

sociating with avoiding or minimizing constitutional judgments that

are not absolutely necessary to settle live disputes. Judicial activism

is also used to describe an absolutist approach to rights, as embodied

in the First Amendment tradition of allowing no laws to restrict free

speech. Finally, judicial activism is often associated with the idea of

judicial supremacy that occurs when a legislature has little choice but

to accept the Court’s constitutional judgment as the f‌inal word. The

idea that judges should follow the intent of the framers of the constitu-

tion, avoid or minimize constitutional judgment, enforce rights in an

absolute manner, and have the last word are all deeply rooted in debates

about American constitutional law. The judicial activism debate is em-

bedded in the American experience of judicial review, but, with the

practice of judicial review, it has spread throughout the globe.1 As the

judicial activism debate goes global, it is important that it not proceed

on assumptions that, however accurate in the context of the American

Bill of Rights, may not be applicable in countries that have modern bills

of rights and parliamentary systems of government.

Popular Understandings of Judicial Activism

much popular discussion of judicial activism is based on a simple

and stark distinction bet ween judges f‌inding the law in the clear words