Judicial Activism
A Synopsis
The issue of "Judicial Activism" is a live one in most countries of the common
law. The accusation that judges have exceeded their proper function is often
made by politicians, media commentators and even some lawyers. The
accusers allege that judges should stick to applying the law they
should not
make it.
The slightest familiarity with current and recent debates over judicial decisions
in Australia, Canada, India and the United States shows that "judicial
activism" is a topic that lawyers need to address seriously. In Australia,
following a closely divided decision of the High Court on native title in favour
of the Aboriginal claimants, the majority judges were accused of "activism".
The Acting Prime Minister of Australia promised to appoint "Capital C
Conservatives" to replace them when their positions fell vacant. The majority
decision of the US Supreme Court in Bush v Gore was denounced by its
critics as "judicial activism" as
was the more recent decision in Lawrence v
Texas declaring that State sodomy offences were unconstitutional. The more
recent court decisions over the recall of the Governor of California have been
described by opponents as instances of "judicial activism". In Canada, the
court decisions upholding the right of homosexuals to "gay marriage" was
defended by supporters as an example of equal rights under the Charter of
Rights. But to others it was a case of "judicial activism", usurping the role of
the elected government and parliament.
In these lectures, Justice Kirby explores these and other cases. Upon one
view, the common law is a continuous legacy of judicial activism over nearly
800 years. But when is judicial creativity in the construction of a written
constitution, the interpretation of legislation or the creation of new principles of
the common law a proper case of judicial reasoning? And when is it an
impermissible instance of judicial activism that exceeds the judge's function?
In examining the judicial method in a topical context, Justice Kirby suggests
that the debate over judicial activism has so far largely passed the judiciary of
the United Kingdom by. However, he points out that recent developments
make it unlikely that this state of affairs will persist. The developments he
mentions include the proposed creation of a Supreme Court for the United
Kingdom, the resulting identification of the Supreme Court judges as public
figures, the increased roles of the judge in reviewing legislation under the
Humans Rights Act, the developments in judicial review of administrative
action and the new procedures for selecting and training judges and changes
in the arrangements affecting the senior members of the Bar from whom the
judges are chosen. The role of the courts under the proposed European
Constitution is another potential agent of change.
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