Omar Bennett
Judicial activism has been a topic of debate for decades, with proponents arguing that it provides checks and balances, while critics charge that it usurps the power of elected government branches. Judicial activism is generally understood as the judiciary's control or influence over political or administrative institutions, processes, and outcomes, and it can take several forms, including overturning laws as unconstitutional, overturning judicial precedent, and ruling against a preferred interpretation of the constitution. The interpretation of the constitution is a key aspect of judicial activism, with activists accused of abandoning their responsibility to interpret it faithfully and instead deciding cases based on their preferred policies. This has led to a perception of judicial activism as a form of judicial supremacy, where judges assert their power to set aside government acts. The impact of judicial activism on constitutional interpretation is particularly significant, with judges accused of applying their own philosophical or political interpretations to the constitution, rather than adhering to the document's original intent.
| Characteristics | Values |
|---|---|
| Judicial activism influences the interpretation of the constitution by overturning laws deemed unconstitutional | Examples include the Indian Supreme Court closing much of the country's iron-ore mining industry and the US Supreme Court striking down provisions of federal election law in Citizens United v. Federal Election Commission (2010) |
| Judicial activism influences the interpretation of the constitution by overturning judicial precedent | Examples include Brown v. Board of Education (1954), which ruled that racial segregation of children in public schools was unconstitutional, and Dred Scott v. Sandford, which upheld slavery in the US |
| Judicial activism influences the interpretation of the constitution by ruling against a preferred interpretation of the constitution | This can be seen in the UK, where there has been an increase in applications for judicial review against the government, and in the US, where judicial activism is often associated with judges enforcing their policy preferences over a faithful interpretation of the law |
| Judicial activism influences the interpretation of the constitution by acting as a check on the majority and protecting minority rights | Scholars argue that judicial activism is appropriate when it restrains the tendency of democratic majorities to act out of passion and prejudice, and when it helps protect the rights of the poor and common people |
| Judicial activism influences the interpretation of the constitution by setting aside government acts | This can be seen in cases such as Miller v The Prime Minister and Cherry v Advocate General for Scotland in 2019, which limited the power of royal prerogative to prorogue Parliament |
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What You'll Learn
Judicial activism and the interpretation of the US Constitution
Judicial activism has had a significant influence on the interpretation of the US Constitution. This influence has manifested in several ways, with varying perceptions among different scholars and judges.
David A. Strauss defines judicial activism as one or a combination of three actions: overturning laws as unconstitutional, overturning judicial precedent, and ruling against a preferred interpretation of the constitution. This definition is narrow and specific, providing a framework for understanding judicial activism. On the other hand, Kermit Roosevelt III offers a broader perspective, suggesting that "activist" is often used as a rhetorical term to describe decisions with which one disagrees. Roosevelt's definition focuses on the judge's willingness to decide constitutional issues and invalidate legislative or executive actions.
The impact of judicial activism on constitutional interpretation is evident in several historical and contemporary cases. One of the most well-known examples is Brown v. Board of Education, which ruled against racial segregation in public schools and is hailed as a landmark decision for civil rights. Similarly, the Supreme Court's decision in Citizens United v. Federal Election Commission (2010) struck down restrictions on corporate and union spending on political advertisements, demonstrating an activist approach by interpreting the Constitution more loosely to accommodate changing societal values.
In recent years, judicial activism has continued to shape the interpretation of the Constitution. For instance, Dobbs v. Jackson Women's Health Organization overruled Roe v. Wade, sending abortion regulation back to the states. Additionally, West Virginia v. Environmental Protection Agency limited the power of regulatory agencies, and Carson v. Makin involved the First Amendment's religion and equal protection clauses. These cases illustrate how judicial activism influences the interpretation of constitutional provisions and shapes policy outcomes.
While some scholars argue that judicial activism provides checks and balances and protects fundamental rights, others criticize it for usurping the power of elected branches of government and damaging the rule of law and democracy. The debate over judicial activism is often not about arguments for or against but instead involves each side accusing the other of activism. This complexity arises from differing opinions on how the Constitution should be interpreted and the challenge of determining whether a decision is based on politics or law.
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Judicial activism vs judicial restraint
Judicial activism and judicial restraint are two contrasting philosophies concerning the interpretation of the US Constitution. Judicial activism encourages judges to take an active role in interpreting the Constitution, often addressing social issues and expanding rights through their rulings. This philosophy views the Constitution as a living, breathing document that should be interpreted in light of contemporary values and circumstances. Judges adhering to this philosophy are more willing to overturn legislative or executive actions and rule against past interpretations of the Constitution.
An example of a US Supreme Court decision that demonstrates judicial activism is Brown v. Board of Education (1954). In this case, the Court actively dismantled racial segregation in public schools, overturning the previous US Supreme Court decision Plessy v. Ferguson (1896). The Court ruled that "separate but equal facilities are inherently unequal", marking a significant shift in policy and addressing a pressing social injustice.
On the other hand, judicial restraint emphasizes limited judicial power and a strict interpretation of the Constitution. Adherents of this philosophy believe that courts should avoid delivering decisions that change the meaning of current laws or government statutes unless there is a clear violation of the Constitution. This approach upholds the balance of power by respecting legislative and executive authority and preventing judicial overreach.
An example of a Supreme Court decision that demonstrates judicial restraint is Nixon v. United States (1993). In this case, the Court refused to intervene in the impeachment process, emphasizing the separation of powers and maintaining respect for the role of elected branches of government.
The debate between judicial activism and judicial restraint is not merely academic but has real-world implications for how the Constitution is interpreted and how power is balanced between the judiciary, legislative, and executive branches of government. While judicial activism can lead to progressive change and the protection of minority rights, it has also been criticized for undermining democratic processes and risking inconsistent rulings. Judicial restraint, meanwhile, has been criticized for being too passive and failing to adapt the Constitution to modern contexts.
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Judicial activism in academic usage
Judicial activism is a judicial philosophy that asserts that courts can and should go beyond the applicable law to consider the broader societal implications of their decisions. It is often used to describe judges who decide cases based on their own policy preferences and personal views rather than a faithful interpretation of the law, abandoning their impartial judicial role. In academic usage, judicial activism typically refers to a judge's willingness to strike down the actions of another branch of government or overturn a judicial precedent, regardless of whether the decision is correct. This definition does not carry a value judgment, and both liberal and conservative judges can be considered activist in this sense.
David A. Strauss offers a narrow definition of judicial activism, suggesting that it can be defined as one or more of three actions: overturning laws as unconstitutional, overturning judicial precedent, and ruling against a preferred interpretation of the constitution. Kermit Roosevelt III, however, argues that the term "activist" is often used as a rhetorical shorthand for decisions with which the speaker disagrees.
In the United States, judicial activism is often used to indicate that judges have gone beyond their proper roles in enforcing the Constitution. This perception of judicial activism has fuelled debates around bitterly contested judicial nominations and the problem of judicial activism. The question of judicial activism is closely related to judicial interpretation, statutory interpretation, and separation of powers.
The understanding of judicial review has transformed over time, evolving from a traditional period of "fair reading" and moderate judicial review to a more activist form in the transitional period from the end of the 19th century to 1937. This evolution has influenced contemporary political debates regarding judicial power.
Some proponents of a stronger judiciary argue that judicial activism helps provide checks and balances, counterbalancing the effects of transient majoritarianism and restraining the tendency of democratic majorities to act out of passion and prejudice. On the other hand, detractors of judicial activism charge that it usurps the power of elected branches of government, damaging the rule of law and democracy.
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Judicial activism and the protection of fundamental rights
Judicial activism has had a significant impact on the interpretation of the constitution, with judges and scholars holding differing views on how the constitution should be interpreted and applied. The concept of judicial activism is often associated with the idea that judges have abandoned their traditional role of interpreting the constitution, instead deciding cases based on their policy preferences and personal biases. This has led to accusations of judges overstepping their authority and usurping the powers of elected branches of government, particularly in countries like the United States.
In the US context, judicial activism is viewed as judges enforcing their interpretation of constitutional requirements rather than adhering to the views of other government officials or previous courts. This activism is seen as the opposite of judicial restraint, where judges strictly adhere to the Constitution's rules. Judicial activism can take the form of overturning laws as unconstitutional, overturning judicial precedent, or ruling against a preferred interpretation of the Constitution.
However, the definition of judicial activism is contested, with some arguing that it is a vague term used to criticise decisions one disagrees with. The distinction between law and policy is often blurred, especially when interpreting vague or value-laden constitutional provisions. Additionally, the interpretation of the Constitution can be influenced by the judge's personal philosophy, leading to different approaches such as originalism or the "living constitution" view.
Despite the controversy, judicial activism has played a crucial role in protecting fundamental rights. For example, in the Indian context, judicial activism has addressed issues faced by the poor and common people, ensuring their rights are upheld. Similarly, in the United States, Brown v. Board of Education (1954) is hailed as a landmark civil rights decision, despite being considered judicial activism at the time. Judicial activism can provide checks and balances, counterbalancing the effects of majoritarianism and preventing decisions made out of passion or prejudice.
In conclusion, judicial activism significantly influences the interpretation of the constitution, often sparking debates about the proper role of the judiciary. While some criticise it as overstepping judicial boundaries, others argue it is necessary to protect fundamental rights and provide checks and balances in a democracy. The complex and evolving nature of constitutional interpretation ensures that the debate surrounding judicial activism remains ongoing and dynamic.
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Judicial activism in India
The Indian judiciary, through Public Interest Litigations (PILs), has addressed societal issues and protected fundamental rights. For example, in the State of Bihar case (1979), the Supreme Court recognised the right to a speedy trial as a fundamental right under Article 21 of the Constitution of India, 1950. In another case, Sheela Barse v. State of Maharashtra (1983), the Supreme Court addressed custodial violence against women prisoners, treating a journalist's letter as a writ petition.
The Indian judiciary's activist approach has also influenced environmental jurisprudence, with the Supreme Court expanding its authority under Article 32 to establish the doctrine of absolute liability for damages caused by hazardous industries. The court has incorporated international principles and agreements, such as the Stockholm Declaration, the Rio Declaration, and the Kyoto Protocol, into its rulings to ensure sustainable development and hold polluters accountable.
Overall, judicial activism in India reflects the judiciary's expanding role in interpreting laws to address societal values and fill the gaps left by other branches of the government. This has led to both controversy and the advancement of social justice and constitutional rights in the country.
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Frequently asked questions
Judicial activism is when judges are perceived to be advancing their policy preferences instead of interpreting the Constitution. Judicial activism can also refer to judges striking down the actions of another branch of government or overturning judicial precedent.
Those in favour of judicial activism argue that it provides checks and balances against the effects of transient majoritarianism, preventing the majority from dominating or oppressing minorities. Judicial activism is also seen as a way to restrain democratic majorities from acting out of passion and prejudice.
Critics of judicial activism argue that it usurps the power of elected branches of government and legislatively created agencies, damaging the rule of law and democracy. Some also believe that it leads to clashes between the courts and the government, as seen in the Miller case in the UK in 2016.
Famous examples of judicial activism include Brown v. Board of Education, which ruled that racial segregation of children in public schools was unconstitutional, and Citizens United v. Federal Election Commission, which struck down limits on corporate and union spending on political advertisements.
