Abstract
The author first sets out a working understanding or definition of ‘judicial activism’ and then considers two possible defences or pleas-in-mitigation that might be offered in reply by a judge accused of this failing. The first relates to the purpose of a written constitution, and when the desire to want to lock things in cannot sensibly be a controlling concern when interpreting that written constitution. The second relates to the act utilitarian/rule utilitarian distinction. The author concludes that although in some circumstances these defences might provide forceful responses or replies to the charge of judicial activism, in any long-established democracy they will fail.
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Notes
- 1.
The reference in the title is to Ecclesiastes 1:2.
- 2.
See Re Same Sex Marriage [2004] 3 SCR 698.
- 3.
See Reference re Secession of Quebec [1998] 2 SCR 217.
- 4.
See United States v Windsor, 570 US 12 (2013).
- 5.
The term is John Gava’s.
- 6.
See Roe v Wade, 410 US 113 (1973).
- 7.
See In re Marriage Cases, 43 Cal 4th 757 (2008).
- 8.
See Roach v Electoral Commissioner (2007) 233 CLR 162. And see Allan (2012).
- 9.
See Rowe v Electoral Commissioner (2010) 243 CLR 1. And see Allan (2012).
- 10.
See Sauvé v Canada (Attorney General) [2002] 3 SCR 519.
- 11.
See Canada (Attorney General) v Bedford [2013] SCC 72.
- 12.
Just before this chapter went to press the Supreme Court of Canada went and did just that, striking down the ban on doctor assisted suicide (though not immediately but in a year from now to give the legislature some time to respond, if it can). See Carter v Canada (Attorney General) 2015 SCC 5.
- 13.
See Reference re Supreme Court Act 1985 [2014] SCC 21.
- 14.
Ringhand purports to make the charge of ‘judicial activism’ a factual or objective one by simply counting how often a judge invalidates a federal law, or state law, or over-rules a past precedent. In effect you get a score by making the number of instances of over-ruling the numerator and then putting that over the number of cases heard, as the denominator. You can then make that a percentage score out of 100, the higher the score the more ‘activist’ you are according to this sort of thinking.
- 15.
Just such a scenario has played out in Australia, in my view, over the past eight or nine decades. I make the argument at length in Allan and Aroney (2008).
- 16.
In other words I would structure my preferred constitutional set-up so that judges overwhelmingly kept their hands off the work of the elected legislature, with the proviso that I am not adverse to federalism-type constraints on the national legislature. See, for example Allan (2010).
- 17.
I consider what such a judge ought to do in Allan (2008).
- 18.
For one thing a particular law might enact a vague, amorphous standard, say ‘award custody based on the best interests of the child’, in which case the law is in effect delegating (or abdicating) decision-making to the point-of-application interpreting judge. For another matter, talk of ‘personal views’ is ambiguous (or does not specify) between (a) the judge’s personal views of what the law means or requires and (b) the judge’s personal views of what is the most desirable outcome in this case, all things considered including non-law things. The first of these is inevitable whenever humans are involved in any decision-making procedure.
- 19.
Take Canada for instance. See Constitution Act 1982s 41, for matters that require the unanimous assent of provincial legislatures.
- 20.
See also, Kay (1998: 16).
- 21.
Just as it can be judicial activism deliberately to allow the locked in portion of the pie to shrink, though as an empirical matter it seems to me that this is at present not something that often happens or a cause for worry.
- 22.
This ‘having your cake and eating it too’ position is essentially the line Dickson CJ adopted in Canada in Hunter v Southam [1984] 2 SRC 145. See Grant Huscroft’s critique in Huscroft (2004).
- 23.
Summarised, but not endorsed, by Schauer.
- 24.
Here is a variant on this possibility. It occurs where a new constitution is introduced, but only after the colonial power has departed. An example is India. At least that is superficially so. Britain imposed no constitution on India before departure. Instead, a constituent assembly devised one for itself over the next three years. Much of this 1950 Constitution is taken word-for-word from the Government of India Act 1935—a piece of Imperial legislation that was considered longer than almost any other enactment in the history of the Westminster Parliament. However, few people today admit this. Put differently, one of the fetters against which the Indians had rebelled was, in large part, freely taken up by them later on. It is also true that the Supreme Court of India is, with the possible exception of Israel’s top court, the most activist court in the world. Whether there is any causal connection to how their Constitution was adopted I leave for others. (The points in this footnote were made to me by Dyson Heydon, to whom I am most grateful.)
- 25.
Bentham way back then also favoured the vote for women.
- 26.
Bentham was keen on a Panopticon Prison, a much more humane sort of prison than any then in existence, though with no concession at all to prisoner privacy. And the John Howard League for Prisoners (and all of its off-shoots in the Commonwealth world) can trace its roots to Bentham.
- 27.
The Royal Society for the Prevention of Cruelty to Animals (and all its off-shoots in the Commonwealth world) can trace its roots to Bentham. Of course for Bentham, the great critic of bills of rights and of the French Declaration of the Rights of Man, this protection is seen in terms of animal welfare, not in terms of animal rights.
- 28.
Bentham spotted what is now widely recognized, that deterrence operates more through the likelihood of being caught than through the severity of the punishment.
- 29.
Here Bentham was right, and quite unusually Adam Smith was wrong. The arguments for repeal, which did not happen until 1854, were virtually all Bentham’s though he had by then been dead for over two decades.
- 30.
One that to my mind is not dissimilar to Trevor Allan’s position that the law is just a provisional guide as to what the judge should do. See Trevor Allan (2001: 216–225). Yuck!
- 31.
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Acknowledgments
An earlier version of this paper was presented at the University of Lisbon’s Centre for Research in Public Law and University of San Diego sponsored conference on judicial activism in Lisbon, Portugal held in May, 2014 at the Faculty of Law, University of Lisbon. The author thanks the many participants from across the EU and the US for their comments and criticisms. The author also wishes to thank Dyson Heydon for his comments on a later draft.
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Allan, J. (2015). The Activist Judge—Vanity of Vanities. In: Coutinho, L., La Torre, M., Smith, S. (eds) Judicial Activism. Ius Gentium: Comparative Perspectives on Law and Justice, vol 44. Springer, Cham. https://doi.org/10.1007/978-3-319-18549-1_6
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