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Judicial Activism: A Multidimensional Model

Published online by Cambridge University Press:  20 July 2015

Margit Cohn  and
Mordechai Kremnitzer
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Extract

The article addresses the question of the role of the judiciary in the constitutional democratic state through an analysis of the concept of judicial activism. The model advanced in the article is based on a composite theory of the role of the judiciary, drawing on, and developing, Canon’s (1982) analysis of judicial activism and more recent multidimensional approaches to the assessment of judicial output. The article supplements the traditional vision of the judiciary as law enforcer in two directions. Drawing on the ‘constitutional dialogue/constitutional interdependence’ paradigm, the article perceives the judiciary as participant in a multi-player web of constitutional interactions, in which other government branches, individuals and public bodies participate in the decision making process; arguments on the omnipotency of the judiciary are thus replaced by a model of interdependency and interaction. The constitutionalist tradition serves as basis for the third vision, under which the judiciary is an active protector of core ‘thin’ societal values.

These three visions of the role of the judiciary support a multidimensional analysis of judicial activism, under which judicial output is considered not only against pre-decision law, but also on the basis of post-decision dynamics and the value content of the decision.

The model comprises seventeen distinct parameters, which include, inter alia, the degree of change in the law, interpretation techniques, interference with democratic processes, rhetoric, obiter dicta, reliance on comparative sources, the extent of the decision, and the complexity of the legal question brought before the court. Under this group of parameters, any change in the law, or action that extends beyond the mere settlement of the dispute before the court, would be considered activist. Additional parameters draw on the second vision of the role of the judiciary, and consider post-decision reaction of the legislature, the administration, the public and the judiciary itself as basis for supplementary assessment. In this context it is argued that a decision that is fully accepted and implemented by other members of the constitutional web should be viewed as less activist than a decision that is subsequently rejected; in the former case the decision conforms with societal consensus or equilibrium, while in the latter case, post-decision processes reflect judicial deviance from such consensus. A final parameter pertains to the value-content of the decision, under which a decision that promotes and protects core societal values should be considered less activist than one that intervenes in low-value policy areas. The model advanced in the article provides a basis for composite qualitative and quantitative assessments of the impact of the judiciary in the social and political spheres.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 18 , Issue 2 , July 2005 , pp. 333 - 356
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2005

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References

The article is based on M. Cohn & M. Kremnitzer, The High Court of Justice, State and Religion, Image and Reality: Judicial Activism in the High Court of Justice, discussion paper, Jerusalem: Israel Democracy Institute, 2005 (Hebrew). The research was conducted under the auspices of the Israel Democracy Institute, and supported by a British Academy research grant for research at the Government Department, Georgetown University. Versions of the paper were presented at the Law and Society Annual Meeting, Pittsburgh, June 2003, and at the IPSA Research Committee on Comparative Judicial Studies, Interim Meeting, Naples, January 2005. The authors thank Eli Linder and Avital Begin for excellent research assistance, and Anthony Bradley, Richard Bronaugh, Aileen Kavanagh, Dawn Oliver and an anonymous CJLJ referee for their important comments. Opinions and errors are the authors' alone.

1. Participants in the debate approach the issue from different angles. Theories of the judiciary based on politico-philosophical analyses are joined in the debate over the origin and nature of judicial review of the executive. These are supplemented by analyses of the impact of the Human Rights Act and its devices for judicial participation and influence, comparative comparisons with sister (or further related) constitutional frameworks and general studies of the judiciary under the new climate. The growing literature is already immense. For general accounts see Robertson, David, Judicial Discretion in the House of Lords (Oxford: Oxford University Press, 1998)Google Scholar; Malleson, Kate, The New Judiciary: The Effects of Expansion and Activism (Aldershot: Ashgate, 1999)Google Scholar; Stevens, Robert, The English Judges: Their Role in the Changing Constitution (Oxford: Hart Publishing, 2002)Google Scholar; Oliver, Dawn, Constitutional Reform in the UK (Oxford: Oxford University Press, 2003) at 89–107, 330-49Google Scholar. For participants in the ultra vires/common law debate see below.

2. For contributions to the debate see Oliver, Dawn, “Is the Ultra Vires Rule the Basis of Judicial Review?” (1987) Pub.L. 543 Google Scholar; Elliott, Mark, “The Ultra Vires Doctrine in a Constitutional Setting: Still the Central Principle of Administrative Law” (1999) 58 Cambridge L.J. 129 Google Scholar; Craig, Paul, “Ultra Vires and the Foundations of Judicial Review” (1998) 57 Cambridge L.J. 63;CrossRefGoogle Scholar Allan, T.R.S., “The Rule of Law as the Rule of Reason: Consent and Constitutionalism” (1999) 115 Law Q. Rev. 221;Google Scholar Craig, Paul, “Competing Models of Judicial Review” (1999) Pub.L. 428;Google Scholar Jowell, Jeffrey, “Of Vires and Vacuums: The Constitutional Context of Judicial Review” (1999) Pub.L. 448 Google Scholar; Jowell, Jeffrey, “Beyond the Rule of Law: Towards Constitutional Judicial Review” (2000) Pub.L. 671 Google Scholar; Bamforth, Nicholas, “Ultra Vires and Institutional Interdependence” in Forsyth, Christopher, ed., Judicial Review and the Constitution (Oxford: Hart Publishing, 2000) 111 Google Scholar; Sir J. Laws, “Judicial Review and the Meaning of Law” in ibid. 173; Mark Elliott, “Legislative Intention Versus Judicial Creativity? Administrative Law as a Co-Operative Endeavour” in ibid. 341; Christopher Forsyth, “Heat and Light: A Plea for Reconciliation” in ibid. 393; Halpin, Andrew, “The Theoretical Controversy Concerning Judicial Review” (2001) 64 Mod. L. Rev. 500 CrossRefGoogle Scholar; Allan, T.R.S., “The Constitutional Foundations of Judicial Review: Conceptual Conundrum of Interpretative Inquiry?” (2002) 61 Cambridge L.J. 87 CrossRefGoogle Scholar; Craig, Paul, “Constitutional Foundations, the Rule of Law and Supremacy” (2003) Pub.L. 92 Google Scholar; Jowell, Jeffrey, “Judicial Deference: Servility, Civility or Institutional Capacity?” (2003) Pub.L. 592 Google Scholar; Forsyth, Christopher & Elliott, Mark, “The Legitimacy of Judicial Review” (2003) Pub.L. 286 Google Scholar; Poole, Thomas, “Back to the Future? Unearthing the Theory of Common Law Constitutionalism” (2003) 23 Oxford J. Legal Stud. 435 CrossRefGoogle Scholar; Allan, T.R.S., “Constitutional Dialogue and the Justification of Judicial Review” (2003) 23 Oxford J. Legal Stud. 563 CrossRefGoogle Scholar; Craig, Paul, “The Common Law, Shared Power and Judicial Review” (2004) 24 Oxford J. Legal Stud. 237 CrossRefGoogle Scholar.

3. Allan (2002), ibid. at 101.

4. On recent debate in the United States see, for example, published outcomes of several symposia: “Symposium: Bush v. Gore “ (2001) 68 U. Chicago L. Rev. 613–791 Google Scholar; “Conservative Judicial Activism” (2002) 73 U. Colo. L. Rev. 1139–1416 Google Scholar; “The Eleventh Amendment, Federalism, and Judicial Activism: Questions and Answers” (2002) Geo. Pub. Pol’y Rev Google Scholar, Inaugural Issue; “Judicial Review: Blessing or Curse—or Both—A Symposium in Commemoration of the Bicentennial of Marbury v. Madison“ (2003) 38 Wake Forest L. Rev. 313-838. Salient decisions include United States v. Lopez, 514 U.S. 549 (1995); Bush v. Gore, 531 U.S. 98; 121 S. Ct. 525 (2000); Geddes v. Texas, 123 S. Ct. 2742 (2003); Gratz v. Bollinger, 123 S. Ct. 2411 (2003); Grutter v. Bollinger, 123 S. Ct. 2325 (2003).

5. B.C. Canon, “A Framework for the Analysis of Judicial Activism” in Halpern, Stephen C. & Lamb, Charles M., eds., Supreme Court Activism and Restraint (Lexington, MA: Lexington Books, 1982) 385 Google Scholar; Roach, Kent, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Toronto, ON: Irwin Law, 2001)Google Scholar; Young, Ernest A., “Judicial Activism and Conservative Politics” (2002) 73 U. Colo. L. Rev. 1139 Google Scholar; Marshall, William P., “Conservatives and the Seven Sins of Judicial Activism” (2002) 73 U. Colo. L. Rev. 1217 Google Scholar; Smilov, Daniel, “The Character and Legitimacy of Constitutional Review: Eastern European Perspectives” (2004) 2 I.CON. 177 Google Scholar.

6. Roach, ibi d.; Hogg, Peter & Bushell, Allison, “The C harter Dialogue between Courts and Legislatures (Or Perhaps the Charter of Rights Isn’t a Bad Thing after All)” (1997) 35 Osgoode Hall L.J. 75 Google Scholar; Webber, Jeremy, “Institutional Dialogue between Courts and Legislatures in the Definition of Fundamental Rights: Lessons from Canada (and elsewhere)” in Sadurski, Wojciech, ed., Constitutional Justice, East and West: Democratic Legitimacy and Constitutional Courts in Post-Communist Europe in A Comparative Perspective (The Hague: Kluwer Law, 2002) 61.Google Scholar

7. Bamforth, supra note 2; Allan (2003), supra note 2; Clayton, Richard, “Judicial Deference and ‘Democratic Dialogue’: the Legitimacy of Judicial Intervention under the Human Rights Act 1998” (2004) Pub.L. 33 Google Scholar.

8. Seidman, L.M., Our Unsettled Constitution: A New Defense of Constitutionalism and Judicial Review (New Haven, CN: Yale University Press, 2001)Google Scholar.

9. See table 1 below.

10. Canon, supra note 5.

11. Easterbrook, Frank H., “Do Liberals and Conservatives Differ in Judicial Activism” (2002) 73 U. Colo. L. Rev. 1403 at 1403;Google Scholar Barak, Aharon, “Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy” (2002) 116 Harv. L. Rev. 16 at 127.Google Scholar

12. Reference to the term are found, of course, in earlier writings. For a selection of post-HRA publications see Irvine, Lord, “Activism and Restraint: Human Rights and the Interpretative Process” (1999) Eur. H.R.L. Rev. 350;Google Scholar Walker, Neil, “Setting English Judges to Rights” (1999)19 Oxford J. Legal Stud. 133 CrossRefGoogle Scholar; Stevens, Robert, “A Loss of Innocence: Judicial Independence and the Separation of Powers” (1999) 19 Oxford J. Legal Stud. 365 CrossRefGoogle Scholar; Barber, N.W., “The Academic Mythologians” (2001) 21 Oxford J. Legal Stud. 369 CrossRefGoogle Scholar; Klug, Francesca & Starmer, Keir, “Incorporation Through the “Front Door”: the First Year of the Human Rights Act” (2001) Pub.L. 654;Google Scholar Bonner, David, Fenwick, Helen & Harris-Short, Sonia, “Judicial Approaches to the Human Rights Act” (2003) 52 I.C.L.Q. 549.CrossRefGoogle Scholar Other articles approach the issue through the flip-side of activism, judicial deference/restraint. See, for example, Craig, Paul, “The Courts, the Human Rights Act and Judicial Review” (2001) 117 Law Q. Rev. 589;Google Scholar Edwards, Richard A., “Judicial Deference under the Human Rights Act” (2002) 65 Mod. L. Rev. 859;CrossRefGoogle Scholar Leigh, Ian, “Taking Rights Proportionately: Judicial Review, the Human Rights Act and Strasbourg” (2002) Pub.L. 265;Google Scholar Klug, Francesca, “Judicial Deference under the Human Rights Act” (2003) 2 Eur. H.R.L. Rev. 125;Google Scholar Attrill, Simon, “Keeping the executive in the picture: a reply to Professor Leigh” (2003) Pub.L. 41;Google Scholar Jowell, “Judicial Deference: Servility, Civility or Institutional Capacity?”, supra note 2; Clayton, supra note 7; Gearty, Conor, Principles of Human Rights Adjudication (Oxford: Oxford University Press, 2004) at 117–45.Google Scholar

13. See Posner, Richard, The Federal Courts: Challenge and Reform (Cambridge, MA: Harvard University Press, 1996) at 314, 318;Google Scholar Schubert, G., “A Functional Interpretation” in Forte, David, ed., The Supreme Court: Judicial Activism vs. Judicial Restraint (Lexington, MA: Heath, 1972) 17 Google Scholar; Vallinder, Torbjörn, “When the Courts Go Marching In” in Neil Tate, C. & Vallinder, Torbjörn, eds., The Global Expansion of Judicial Power (New York: New York University Press, 1995) 13.Google Scholar

14. Barak, Aharon, Judicial Discretion, trans. by Kaufmann, Yadin (New Haven, CN: Yale University Press, 1989) at 148.Google Scholar

15. Robert Bork defines judicial activism as one that promotes elitist platforms that lack sufficient electoral support. Bork, Robert, The Tempting of America (New York: The Free Press, 1990) at 16 ff.Google Scholar

16. Canon, supra note 5 at 386 ff. This type of exercise is in line with recent calls for ‘pluralising hermeneutics’, which considers the variety of meanings attached to texts and concepts. For a general call towards adoption of composite theory in public law, see Loughlin, M., “The Pathways of Public Law Scholarship” in Wilson, G. P., ed., Frontiers of Legal Scholarship (Chichester: John Wiley) 163 at 184.Google Scholar

17. Both Young and Marshall emphasize that their exercise draws together formerly discussed criteria, in an aim to provide a common basis for further debate. Young, supra note 5 at 1144; Marshall, supra note 5 at 1119-1220.

18. Smilov’s types of judicial activism ranges from ‘systematic’, through ‘occasional’, to different modes of counter-majoritarianism, interpretation and application of discretion. Smilov, supra note 5.

19. “… the degree to which judges are free to read their own preferences into law”, and the degree to which judges are eager to make “constitutional issues that are not necessary to decide a live dispute”. Roach, supra note 5 at 106-08.

20. Ibid. at 108 ff.

21. See ibid. at 109 ff.

22. For example, assessment of a court’s activism under the first parameter (judicial stability) must consider the nature of previous precedent. Departure from a lengthy and reasoned decision on a publicly sensitive issue, that supported a strong body of law for a long period of time, should be considered higher on the activist scale compared with a decision to overturn a recent decision in a comparatively uncontested field. A lacuna or a complex legal background creates a greater potential for activism in comparison to a background that consists of a simple legal rule. Likewise, the vagueness of a text is decisive in the interpretative exercise to be undertaken and its degree of activism.

23. Ibid. at 110. See also Dor, Gal, “Governmental Avoidance versus Judicial Review: A Comparative Perspective on Israeli Decision-Making Strategies in Response to Constitutional Adjudication” (1999) 13 Temple Int.’l & Comp. L.J. 231;Google Scholar Dor, Gal “Constitutional Dialogues in Action: Canadian and Israeli Experiences in Comparative Perspective” (2001) 11 Ind. Int’l & Comp. L. Rev. 1.Google Scholar

24. See Raz, Joseph, Ethics in the Public Domain (Oxford: Clarendon Press, 1994) at 238.Google Scholar

25. Hogg and Bushell, supra note 6 at 79 ff. For an analysis in the Australian context see MacDonald, Leighton, “New directions in the Australian bill of rights debate” (2004) kPub.L. 22.Google Scholar

26. Bamforth, supra note 2 at 114.

27. Raz, Joseph, The Concept of a Legal System, 2nd ed. (Oxford: Clarendon Press, 1980) at 1 87-89.CrossRefGoogle Scholar

28. Barber, N.W., “Sovereignty Re-examined: The Courts, Parliament, and Statutes” (2000) 20 Oxford J. Legal Stud. 131 at 144CrossRefGoogle Scholar. Barber points at the ‘dual authority’ of judges, who operate on both the legal and political sphere. See ibid. at 151.

29. Allan, “Constitutional Dialogue and the Justification of Judicial Review”, supra note 2 at 583 ff. For the utility of the concept of ‘dialogue’ in the analysis of the role of the judiciary under the Human Rights Act, see Clayton, supra note 7.

30. Clayton, ibid. at 46. We refrain from citing the extensive literature on the intricacies of the Human Rights Act; some of the literature is cited throughout this article.

31. Roach, supra note 5 at 110.

32. For study of this situation in the Israeli context see Dotan, Yoav, “Judicial Review and Political Accountability: The Case of the High Court of Justice in Israel” (1998) 32 Israel L. Rev. 448.CrossRefGoogle Scholar

33. For a similar argument see Dotan, ibid.

34. On the notion see McBarnet, Doreen, “Law, Policy, and Legal Avoidance: Can Law Effectively Implement Egalitarian Policies?” (1988) 15 J. L. & Soc’y 113;CrossRefGoogle Scholar McBarnet, Doreen & Whelan, Christopher, “The Elusive Spirit of the Law: Formalism and the Struggle for Legal Control” (1991) 54 Modern L. Rev. 848.CrossRefGoogle Scholar

35. Dworkin, Ronald, “Introduction: The Moral Reading and the Majoritarian Premise” in Freedom’s Law: The Moral Reading of the American Constitution (Oxford: Oxford University Press, 1996) 1.Google Scholar

36. Allan, T.R.S., “Common Law Constitutionalism and Freedom of Speech” in Beatson, J. & Cripps, Y., eds., Freedom of Ex Pression and Freedom of Information: Essays in Honour of Sir David Williams (Oxford: Oxford University Press, 2000) 17 Google Scholar. For a typology of three sub-theories of common law constitutionalism see Poole, supra note 2.

37. See Loughlin, Martin, Public Law and Political Theory (Oxford: Clarendon Press, 1992) at 206–29.Google Scholar

38. Supra note 35.

39. Tushnet’s ‘thin constitution’ revolves around “the principle that all people were created equal, the principle that all had inalienable rights”. Tushnet, Mark, Taking the Constitution Away from the Courts (Princeton, NJ: Princeton University Press, 1999) at 11.Google Scholar

40. Dworkin, Ronald, Taking Rights Seriously (London: Duckworth, 1977) esp. at 134 ff.Google Scholar It would be impossible to even attempt to cite the vast literature.

41. Fallon, Richard H., Jr., “How to Choose a Constitutional Theory” (1999) 87 Cal. L. Rev. 535 at 549 ff.Google Scholar

42. John Hart Ely, who promotes process values as lynchpins of judicial contribution, inevitably enters minimal value territory in his last chapter of Democracy and Distrust, in his assumption that certain constitutionally noxious statutes “couldn’t pass”. Mark Tushnet’s ‘thin constitution’, essentially based on the principle “that all people were created equal … [and hold] inalienable rights”, is designed to be upheld and developed by political processes rather than by the Supreme Court, but his argument is targeted at judicial power to invalidate statutes, and is laced with assumptions on the centrality of the ‘thin’ value-basis which could still flourish judicially in a non-judicial review constitutional framework. See Hart Ely, John, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980) at 182;Google Scholar Tushnet, supra note 39 at 11 and ch. 7.

43. Dworkin, Taking Rights Seriously, supra note 40 at ch. 6.

44. Dworkin, Freedom’s Law, supra note 35 at 17.

45. Ibid.

46. Allan, T.R.S., Law, Liberty and Justice: The Legal Foundations of British Constitutionalism (Oxford: Clarendon Press, 1993)Google Scholar; Allan, “The Rule of Law as the Rule of Reason: Consent and Constitutionalism”, supra note 2; T.R.S. Allan, , Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford University Press, 2001).Google Scholar

47. Oliver, Dawn, “The Underlying Values of Public and Private Law” in Taggart, Michael, ed., The Province of Administrative Law(Oxford: Hart Publishing, 1997) 217 Google Scholar; Oliver, Dawn, Common Values and the Public-Private Divide(London: Butterworths, 1999) at 55–70.Google Scholar

48. For some of the contributions made by the main proponents see Anthony Lester & Jowell, Jeffrey, “Beyond Wednesbury: Substantive Principles of Administrative Law” (1987) Pub.L. 368 Google Scholar; Oliver, supra note 2; Anthony Lester, “English Judges as Law Makers” (1993) Pub.L. 269; The Hon. Sir Laws, John, “Law And Democracy” (1995) Pub.L. 72 Google Scholar; The Rt. Hon. Lord Woolf of Barnes, “Droit Public—English Style” (1995) Pub.L. 57;Google Scholar Sir Laws, J., “Is the High Court the Guardian of Fundamental Constitutional Rights?” (1993) Pub.L. 59 Google Scholar; Jowell, “Of Vires and Vacuums: The Constitutional Context of Judicial Review”, supra note 2; Allan, “The Rule of Law as the Rule of Reason: Consent and Constitutionalism”, supra note 2; Jowell (2000), supra note 2; Laws, supra note 2; Allan (2001), supra note 46; Jowell (2003), supra note 2.

49. For one of the founding fathers of twentieth century debate, see Wechsler, Herbert, “Toward Neutral Principles of Constitutional Law” (1959) 73 Harv. L. Rev. 1 CrossRefGoogle Scholar. For prominent participants see Berger, Raoul, Government by Judiciary: The Transformation of the Fourteenth Amendment (Cambridge, MA: Harvard University Press, 1977)Google Scholar; Posner, supra note 13; Scalia, Antonin, “Originalism: The Lesser Evil” (1988-89) 57 U. Cin. L. Rev. 849; BorkGoogle Scholar, supra note 15; Mark Tushnet, supra note 39. For the British debate see, inter alia, Waldron, Jeremy, “A Right-Based Critique of Constitutional Rights” (1993) 13 Oxford J. Legal Stud. 18 CrossRefGoogle Scholar; Griffith, John A.G., The Politics of the Judiciary, 5th ed. (London: Fontana, 1997)Google Scholar; Waldron, Jeremy, Law and Disagreement (Oxford: Clarendon Press, 1999), chs. 10–13.CrossRefGoogle Scholar

50. Poole, supra note 2 at 450, 447.

51. See, for example, Craig, “Competing Models of Judicial Review”, supra note 2 at 439 ff; Oliver, supra note 47 at 42.

52. See Daintith, Terence, “Legal Analysis of Economic Policy” (1982) J. Law & Soc. 191 at 214-19CrossRefGoogle Scholar; Daintith, Terence, “The Techniques of Government” in Jowell, & Oliver, , eds., The Changing Constitution, 3rd ed. (Oxford: Clarendon Press, 1994) at 213 and passim.Google Scholar

53. Canon uses a three-point marking system (highly activist, somewhat activist and non-activist) in a quantitative assessment of fourteen decisions of the Supreme Court of the United States. These decisions represent different judicial eras—the Burger Court, the Warren Court, one wartime decision and two decisions ‘from the days of substantive due process’. He then compares the Burger Court, the Warren Court and the pre-New Deal Court, by focusing on ten of these decisions. His findings (which, he admits, are based on a small sample) are surprising. The Warren Court ranks lowest on the activist scale, and the Burger Court achieves the highest rating. Canon, supra note 5 at 406-12.

54. As a basis for quantitative exercise, our model’s methodological problems outweigh Canon’s: measuring seventeen different parameters that belong to three separate categories raises difficult methodological issues. Some of the parameters may be viewed as more important than others; the relative relevance of the second and third categories can be debated; and rating scales are also open for debate. Moreover, most, if not all, decisions are likely to attain a median or low score. A score of extremely high activism is improbable; some of the parameters are intrinsically disparate, if not opposed, and most decisions would reflect a judicial choice between different tactics of activism and restraint. Finally, some of the parameters clearly seem more crucial in assessment of activism than others; under a ranking system that grants an equal weight to each of the parameters, the actual import of a decision could be misrepresented. For example, it would seem unjustified to assess a decision that materially changes the law in an important area, and is rated as highly activist under parameters 1 and 2, as only slightly activist in total, simply because it is short, low on rhetoric, lacks obiter dicta, and followed by consensus.

Notwithstanding its shortcomings, a quantitative exercise could still provide interesting data. The model may be less useful in an assessment of the activism of a single decision, since it is likely that most decisions are found to be ‘somewhat activist’, but when used to compare different decisions and bodies of decisions, it could be very instructive in the understanding of judicial output.