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July 22, 2007
I've always been puzzled by what conservative political commentators mean by judicial activism. In Australia they say judicial activism is bad thing. These commentators seem to have an antagonism to the judiciary expanding individual rights through decisions that depart from established precedent or are independent of supposed constitutional or legislative intent. Is human rights that is the problem? Or is it expanding the law through interpretation? Or is it that the judiciary is usurping the power of the legislature?
Greg Craven can helps us to sort through the theories of judicial activism that have gained widespread acceptance. He says by saying that judicial activism describes the process under which a judge takes a decision which involves the conscious moulding of the law by reference to the judge's own perception of the relevant policy imperatives. He adds:
It needs to be understood at the outset that courts can be active in very different circumstances, and with widely varying degrees of legitimacy. To take the simplest example, a court clearly can be judicially active in re-shaping the common law. At the next level, a court may pursue an activist path in so "interpreting" a statute that its meaning is fundamentally different from that intended by Parliament. Finally, a Court may seek to shape the Constitution itself, either by ascribing a particular meaning to a portion of text, or by discerning the existence of some "implied" constitutional doctrine. Constitutions are in fact particularly vulnerable to this type of activism, because of the width of expression they necessarily employ.
Craven says that three different forms of judicial activism have three, different degrees of legitimacy. He accepts the first, and challenges the second. The courts have no capacity to make or amend statutes as these are made by Parliaments elected directly by the people. This activism raises of democratic and legal illegitimacy.
It is the third form of judicial activism--called progressivism--- that is targeted:
Even worse is constitutional activism.... Australia thus has a democratically derived and democratically alterable Constitution, and it is difficult to imagine a context in which judicial activism could be more illegitimate.Nor is such constitutional activism much more plausible when plotted on an axis of competence. When the High Court engages in constitutional activism---often called progressivism---it essentially is involved in the taking of macro-policy decisions of the first order. For example, when the Mason Court in cases like Australian Capital Television created an implied freedom of political communication, it was involved in setting the mutual limits of privacy and speech in a political context, by reference to norms of political, media and corporate behaviour. Yet the Court is a body of legal distinction only, and has no obvious insight into any of these matters.
Craven grants that there is room for the Court to make choices in the interpretation of the Constitution: constitutional language can be highly ambiguous. What the Court cannot legitimately do, however, is consciously to mould the Constitution against the grain of its intention, text and historical scheme.the Mason Court's creation of an implied freedom of political communication represented a high-point in Australian judicial creativity in a constitutional context. This was, after all, a right with no plausible constitutional text to support it, and one utterly opposed to verifiable historical intent.
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