Through innovative interpretation of laws and constitutions, activist judges effectively create new rights – unilaterally adopting the functions of elected officials. Judicial activism swaps the rule of law for the rule of lawyers.
“What Judges Have Wrought Is A Coup D’Etat – Slow Moving And Genteel, But A Coup D’Etat Nonetheless.”
- Robert Bork (a Ronald Reagan nominee for the US Supreme Court who was rejected by Congress because of his constitutionally conservative views).
Robert Bork has said that judicial activism involves unelected judges “legislating from the bench on issues that would not pass muster at the ballot box”. These unelected judges will deny that they are interpreting laws actively, of course, but conservatives accuse them of permitting personal prejudices to colour their decisions.
A short history of judicial activism
The problem of ‘judicial activism’ reared its ugly head in 1973 when the US Supreme Court legalised abortion. It was a shocking decision that electrified pro-life Americans and probably birthed America’s modern-day religious right. The Supreme Court based its decision on a pregnant woman’s constitutional right to privacy. A right to abortion, that feminist groups had failed to secure via the ballot box, was granted by judges.
In 2003 the Supreme Court of Massachusetts ruled that state laws limiting the right of marriage to a man and a woman were unconstitutional. New York state’s Supreme Court has recently agreed with this new right of same-sex marriage and America’s social conservatives are rushing to pass laws that will protect the traditional definition of matrimony.
Britain has had its own experience of judicial activism. In 1999, the European Court of Human Rights lifted the UK’s ban on gay people serving in the armed forces.
At other times judges have appeared to frustrate democratically-elected politicians’ policies on crime. Both the Tory Party’s Michael Howard and Labour’s David Blunkett found their crime strategies undermined by judges dispensing lenient prison sentences.
The political left and Michael Moore Conservatives are attempting to use legal arguments to say the pre-emptive war against Saddam was wrong. Melanie Phillips fumed:
"The law itself has become a kind of secular religion, with lawyers the new priesthood. As a result, governments and other public authorities now look to lawyers to bestow or withhold their blessing... The idea that no Prime Minister can take action he considers necessary to defend his country unless international lawyers give him permission is preposterous."
Remedying judicial activism
America has an obvious remedy for judicial activism. Elected politicians appoint judges and the Republican Party has made its commitment to appoint “strict constitutionalists” a key political issue. Replacing today’s activist judges will depend upon continued Republican electoral success and finding trustworthy judges. But, given time, judicial activism could be curtailed in America. The situation is less hopeful in Britain. Here, judges are not democratically accountable but emerge out of an already left-liberal establishment.
International law
The new front for judicial activists is international. Robert Bork has already noted how one US Justice - William Brennan - cited the rejection of capital punishment “throughout the world” “within his dissent in a case upholding the execution of man whose crime was committed when he was a minor”. A whole range of treaties passed in smoke-filled rooms by unaccountable UN-based officials may, therefore, provide the dubious basis for future judicial activism.
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