Judicial Activism Encounter

Article excerpt


MELBOURNE, Australia. - Most legal reporters would burn their briefs to overhear U.S. Supreme Court discussions between Justices Antonin Scalia and Stephen Breyer, respectively the leading conservative and liberal minds on the court. They would additionally risk cruel and unusual punishments to sit in on a Scalia-Breyer debate on the hot topic of "judicial activism."

Yet a series of such debates took place over the weekend at a "Conversazione" jointly held by the universities of Boston, Oxford and Melbourne in the latter city. They were attended not only by some of the cleverest lawyers and historians from all three jurisdictions but also by lucky law students from Melbourne. And they may have detected a new intellectual tremor.

Sixty years ago "judicial activism" was definitely not a hot topic in countries belonging to the Anglo-American legal tradition. Division of responsibility was then clear: Congress or parliament made the law and judges interpreted it.

Then, 50 years ago in the U.S. the Warren Court began making laws on its own judicial authority. Thirty years ago Australia's high court followed suit. And in the last decade the British government - the last stronghold of legislative supremacy - passed a "Human Rights Act" that allows judges, in effect, to declare laws unconstitutional.

British judges have since exploited the HRA to prevent the authorities from deporting terrorist suspects or effectively controlling immigration.

Allowing judges to overturn, re-write and invent laws means that they become what Shelley called poets - "the unacknowledged legislators of mankind." Nor is "mankind" an exaggeration. The very latest judicial trend - Justice Sandra Day O'Connor is a particular devotee of it - is to root legal judgments in foreign precedents from countries with constitutions very different from the one hammered out in Philadelphia, such as Zimbabwe.

Instead of being ruled by elected representatives in Congress and the presidency, we gradually find ourselves living under laws shaped by a new political elite of international lawyers. And they may hold very different opinions from the voters. As one speaker, Justice Dyson Heydon of the Australian high court, said in a public speech (the rules do not permit direct quotes from the Conversazione) some years ago:

"When judges detect particular community values, whether in the Australian community or the "international community," as supporting their reasoning, they may sometimes become confused between the values which they think the community actually holds and the values which they think the community should hold."

Indeed, given the decisions of the U.S. Supreme Court on such matters as racial preferences - in which the court has consistently imposed "mainstream" solutions opposed with equal consistency by large majorities of American voters - there is no doubt that U.S. judges are guilty of exactly that confusion.

Nor did their confusion end there. Those at the Conversazione favorable to judicial activism responded with two arguments. The first was that judicial activism did not really exist. It was a misleading or useless category of analysis and grossly exaggerated the trivial extent to which judges invade the sphere of elected politicians.

The second held that judicial activism was essential to save us from the kind of human rights abuses that occurred in the 1930s in Europe - a necessary restraint on the potential oppression of minorities by majority rule, no less. …