Judicial Activism: A Multidimensional Model

Abstract

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.

Canadian Exclusion of Evidence Under Section 24(2) of the Charter: An Empirical Model of Judicial Discourse

“…For example, the term is often used as a means of critiquing a particular decision and suggests, when lobbed at the judiciary, that the judiciary has somehow abused its constitutional or legislative role (Kelly and Manfredi 2009: 295). Charges of judicial activism are usually meant to suggest that the court has adopted a political stance, and worse, that this stance has resulted in judicial decision making beyond the "proper limits" of the judiciary (Cohn and Kremnitzer 2005;Jochelson et al 2012). The literature on judicial activism is, of course, vast.…”

“…The literature on judicial activism is, of course, vast. The general conception is that judicial activism occurs at the boundary of judicial decision making, when a court moves beyond its adjudicative function and into the legislative realm (Cohn and Kremnitzer 2005;Jochelson et al 2012). A Court may appear to make this shift (from restrained to activist) when it makes decisions that trouble the supremacy of Parliament, when it defies the intent of the law's drafters, when it skirts the plain meaning of legislation, when it makes decisions that affect social policy, when it makes large-scale, high-impact, and significant decisions on the basis of relatively poor and narrow judicial resources (such as facts and social science evidence), when it overturns settled law (statutory, constitutional, or common law principles), when it makes decisions on the basis of materials not in force within the jurisdiction (e.g., American jurisprudential materials or international instruments), when it creates new law or invents legal tests, or when it alters legislative language (Cohn and Kremnitzer 2005) (this list is not meant to be exhaustive).…”

“…The general conception is that judicial activism occurs at the boundary of judicial decision making, when a court moves beyond its adjudicative function and into the legislative realm (Cohn and Kremnitzer 2005;Jochelson et al 2012). A Court may appear to make this shift (from restrained to activist) when it makes decisions that trouble the supremacy of Parliament, when it defies the intent of the law's drafters, when it skirts the plain meaning of legislation, when it makes decisions that affect social policy, when it makes large-scale, high-impact, and significant decisions on the basis of relatively poor and narrow judicial resources (such as facts and social science evidence), when it overturns settled law (statutory, constitutional, or common law principles), when it makes decisions on the basis of materials not in force within the jurisdiction (e.g., American jurisprudential materials or international instruments), when it creates new law or invents legal tests, or when it alters legislative language (Cohn and Kremnitzer 2005) (this list is not meant to be exhaustive). Yet some scholars note that even decisions that seem activist may be emanating from a restrained ethic if a court is implementing its decision on the basis of core constitutional philosophies; for example, using the conception of equality to strike down a law could be considered restrained (rather than activist, despite a possible deviation from Parliamentary intent) if one defined the ethic of equality as a core and settled constitutional foundation (Cohn and Kremnitzer 2005).…”

“…Here, we measure whether the Court was ready to depart from its own or former decisions. Departure from precedent is a fairly standard indicator of judicial activism (Cohn and Kremnitzer 2005). When the Court affirmed the decisions of all lower courts, we scored the case as closer to 1 and as more restrained.…”

The Supreme Court as a Political Entrepreneur: The Case of Israela

“…While at the beginning of this period the Court limited the ability of citizens to appeal to the courts in matters concerning decisions of the Knesset and the government, by the end of the period it had expanded this ability significantly, thus implementing an informal policy of procedural judicial activism (Barzilai 1998;Cohn and Kremnitzer 2005;Galnoor 2004;Hirschl 2001;Hofnung 1999;Mautner 1993;Mizrahi and Meydani 2003). In effect, this period saw a significant transformation of the relations and the institutional equilibrium between the Israeli Supreme Court and the Knesset, thus enabling an informal institutional change regarding the answer to the question 'who governs?'…”