Judicial Activism: The Boundaries of the Judicial Role
Introduction
Judicial activism is an ill-defined concept concerning the proper limits of the judicial role in a society under the rule of law.
The definition of these limits can vary based on the society, the functions conferred upon the judiciary, constitutional structures, the historical role of the judiciary, and contemporary societal expectations.
Judges are labeled as "activists" or "imperial" when they exceed constitutional, historical, or contemporary societal expectations, essentially becoming a law unto themselves.
Legitimacy varies across societies; for instance, the public interest jurisdiction in Indian courts might be seen as an unwarranted intrusion into executive functions if exercised by Australian judges.
The fundamental question is whether there is a common ground across different societies to define the boundaries of the judicial function.
The Elements of Judging
Core elements of the judicial function require judges to engage in a wide range of creative activities.
These activities are assumed to take place within a society that has:
A legislature to make laws.
An executive to carry out laws.
A judiciary to resolve disputes according to law.
Further assumption: functions of making, administering, and adjudicating laws are institutionally separated, representing the narrowest function for the judiciary.
In 1983, the High Court of Australia described the central function of courts as:
"[…\ ] the quelling of … controversies by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion".
Simple model of judicial decision making:
Judge identifies a rule of law applicable to a class of fact situations.
Judge determines the facts of the case.
Judge applies the rule of law to the facts to yield a conclusion about the rights and liabilities of parties.
The Application of Broad Legal Standards
Rules of law applied by judges can be constitutional, statutory, or judge-made common law rules.
Questions of judicial choice and charges of activism arise most acutely in identifying applicable rules of law; there are also normative choices in applying some rules.
Many common law rules use language that requires judicial evaluation, such as:
"Reasonable".
"Unconscionable".
"Foreseeable".
"Remote".
"Good faith".
These terms may not have a single useful meaning, necessitating the development of sub-rules of application, leading to new common law derived from case-by-case application of broad legal rules.
Example: "misleading or deceptive conduct" from s 52 of the Trade Practices Act 1974 (Cth), which has generated substantial judge-made law applied to various contexts:
Consumer transactions.
Advertising.
Promotional statements.
Pre-contractual negotiations.
Statements in prospectuses.
Professional opinions and advice.
Logos, trademarks, trade names.
Parliamentary intervention occurred when s 65A was enacted to exclude media from the scope of the prohibition.
The prohibition on misleading or deceptive conduct is developed through logical reasoning but uses broad statutory words defining "legal standards" rather than legal rules.
As Julius Stone noted, standards like fairness, reasonableness, and non-arbitrariness require decisions based on what justice requires in the context of the specific case, not merely logical deductions.
Quantitative indication of such terms in Australian statutes:
"Good faith" appears in 169 separate Acts.
"Reasonable" appears in 143 Acts.
"Interests of justice" appears in 50 Acts.
"Unconscionable" appears in 12 Acts.
"Just cause" appears in 7 Acts.
"Just excuse" appears in 1 Act.
Interpretation and application of these terms involve both principled logic and value judgments.
Terms like "in relation to" and "in connection with" (especially in taxing statutes) require judicial consideration of their general range and evaluative judgments in specific cases.
Entrusting the judiciary with developing law within broadly stated guidelines is common due to the complexity of society and the variety of individual circumstances.
Statutory Interpretation
Statutory interpretation is significant where statutory language presents choices about its meaning.
Precision of expression is illusory, and more detailed linguistic formulae create more room for argument.
Example: the Migration Act 1958 (Cth) evolved from the Immigration Restriction Act 1901 (Cth) with 19 sections to the extensive Migration Act with 760 sections and numerous regulations.
Amendments aim to reduce ministerial discretion with conditional obligations, but more conditions lead to more debates about proper construction.
Statutes often work well practically until they are litigated, at which point arguments about their meaning arise.
Interpretation rules begin with the ordinary grammar and usage of words; however, most words have multiple definitions.
The applicable meaning is identified by reference to context and legislative purpose.
Statutory objectives may be expressed generally, offering limited assistance in specific interpretational problems.
Courts may consider materials like the Second Reading Speech, Explanatory Memorandum, and Law Reform Commission reports to ascertain purpose.
Some argue the judicial function is to construe an Act according to legislative intention, but the concept of legislative intention is a construct or fiction.
Dawson J noted that individual members of Parliament may not necessarily mean the same thing when voting on a bill.
"Legislative intention" is used to proclaim an attributed intention based on legislative purpose formulated through statutory interpretation.
This attribution is made by the court, acting as a declaration of legitimacy that the interpretation is proper in a representative democracy.
Courts use generally accepted criteria of construction, referencing matters before Parliament when the law was enacted, such as the words of the statutes and their ordinary meanings.
Rules of construction are understood by parliamentary drafters and are partly judge-made and partly statutory, but do not always yield a single unique answer.
Judges have significant room in the interpretation process to determine what the law is.
The meanings of legislative words are products of interpretation, legitimate when principled and invoking criteria understood by the legislature, executive, and judiciary.
The Many Meanings of "Activism"
Given the choice-rich decision-making conferred on judges, it is hard to define what distinguishes so-called activist judges.
The term "judicial activism" was first used by Arthur M Schlesinger in 1947, referring to Roosevelt's Supreme Court, contrasting "judicial activists" with "Champions of Self Restraint".
Schlesinger characterized the conflict as:
Activists believing the Supreme Court could promote social welfare.
"Champions" advocating judicial self-restraint, allowing other government branches to achieve the people's desired results.
Schlesinger acknowledged the legal realism underpinning the activist view, influenced by Yale Law School, suggesting that judging involves reverse engineering from result to reasons.
The Yale thesis posits that wise judges recognize the inevitability of political choice and consciously exercise judicial power with an eye to social results.
Even without invalidating laws of Congress, the Supreme Court has political power through its obligation to interpret laws.
Learned Hand noted that the words a judge must construe are "empty vessels into which he can pour nearly anything he will."
Definitions of judicial activism have proliferated since Schlesinger's use of the term.
One definition: a judge serving a function beyond what is necessary for the decision of a particular dispute.
Another definition: a willingness to write opinions brimming with dicta.
Keenan Kmiec offers five core meanings:
Invalidation of arguably constitutional actions of other branches.
Failure to adhere to precedent.
Judicial "legislation".
Departures from accepted interpretive methodology.
Result-oriented judging.
The term's meaning has become unclear despite its increased usage in legal articles.
Scholars and judges recognize this problem but persist in using the term without defining it, leading to miscommunication.
Professor Craven offers three definitions relating to common law, statute law, and the Constitution:
Common law: conscious development of the common law according to the court’s perceptions of the direction the law should take.
Statute law: consciously adopting an interpretation that goes beyond the ordinary import of the words to give effect to true legislative intention or to frustrate an unpalatable legislative intention.
Constitutional interpretation: equating activism with "progressivism," continually updating the Constitution in line with perceived community and social expectations.
Judicial review of executive action attracts debate about judicial activism in Australia.
The Australian Constitution empowers courts to pass upon the constitutionality of legislation and the validity of executive acts.
Section 75(v) confers authority on the High Court to review unlawful executive action.
Statutes like the Administrative Decisions (Judicial Review) Act 1977 (Cth) seek to simplify and make judicial review more accessible.
Some view the exercise of such jurisdiction as judicial activism.
Professor Brian Galligan defined "judicial activism" as "control or influence by the judiciary over political or administrative institutions."
Some distinguish between "proper" and "improper" judicial activism.
Proper judicial activism polices the boundaries of power between government entities.
Improper activism is rooted in the belief that law is only policy and the judge should build the good society according to their own vision.
Conclusion
Much discussion of "judicial activism" concerns the separation of legislative, executive, and judicial power and the reciprocal restraints that accompany it.
In the Australian context, this separation is not defined by bright lines and involves conventional restraint.
It’s useful to ask if a judge has exceeded their function by laying down legislative rules beyond permitted interstitial law-making.
In judicial review of executive action, it's important to consider whether a judge has entered the territory of "merits review" and substituted their own view for the executive's.
It should be questioned whether a judge has applied accepted principles of constitutional or statutory interpretation and, if not, why they have departed from them.
Each question raises a different legitimate concern that is compromised if swept up under the term "judicial activism."
There is concern about judges taking over the functions of the legislature and the executive.
Montesquieu’s The Spirit of Laws emphasizes the importance of separating judicial power from legislative and executive powers to avoid arbitrary control and oppression.
Montesquieu’s concern extended to the combination of these functions, not limited to judges exercising executive or legislative functions.