This article proposes a new cross-national thesis for judicial decision making. The judicial politicization theory posits that judges on highly politicized high courts will be more likely to decide cases using ideological and attitudinal factors than judges at less politicized courts. The theory holds that informal norms regarding judicial appointment by the executive are more important than the formal selection mechanism in determining whether a judiciary is highly or less politicized. The results show significant attitudinal judicial voting at each high court and strong support for the contention that judges on highly politicized courts are more likely to decide cases ideologically.
law and courts, comparative judicial politics, high courts, United States, Canada, Australia
This article examines two related and highly salient issues: judicial decision making and judicial activism. Judicial decision making refers to the processes and factors that influence judges to decide cases as they do. In other words, why does a judge vote for one litigant instead of the other in a particular case? Does the judge base his or her decision on the legal principles governing the dispute, or is he or she affected by ideological, policy, or strategic considerations? For more than fifty years, public law scholars have attempted to unravel the mysteries of judicial decision making, and a variety of theories and models have been propounded and tested.
The other, related topic examined in this article is the concept of judicial activism. Judicial activism, as typically defined, occurs when a court strikes down or invalidates an act of the legislature or the executive. This simple definition, though, excludes the deeper issues and disagreements surrounding the concept. Critics of judicial activism assert that judges should seldom invalidate legislation or executive actions, while supporters hold that the ability of judges to overturn unconstitutional and unjust laws is a necessary check in a political system. Thus, judicial activism remains controversial, both in the trenches of academia and on the battlefields of politics. Nearly every election cycle in the United States finds conservative politicians decrying "activist judges" who "write laws from the bench," while defenders point out that it is these same judges who protect unpopular minorities from oppression through judicial rulings. In academe, normative commentators have described judicial activism as a form of "creative constitutional development" (Lewis 1999, 3) or as an "unfortunate phenomenon" (Wolfe 1997, x).
In recent decades, judicial activism has been recognized as not an exclusively American phenomenon, but, indeed, present in many democracies worldwide, to a greater or lesser degree (Holland 1991, 2000; Tushnet 2003). The influence of high courts throughout the world of modern democracies increased dramatically in the latter half of the twentieth century, as supreme courts expanded their role beyond dispute resolution to the creation of public policy (Tate and Vallinder 1995). But despite evidence that judicial activism has been increasing in many industrialized democracies, there have been few empirical, cross-national studies of the phenomenon, and few scholars have proposed theoretical frameworks to explain and predict judicial activism. Similarly, there has been little cross-national research into the dynamics of judicial decision making in comparative perspective. Much of the cross-national work that has been done has been primarily qualitative in nature (see, e.g., Guarnieri and Pederzoli 2002; Koopmans 2003; Tate and Vallinder 1995), most likely due to the difficulty in obtaining empirical data across states.
This article will attempt to remedy that deficiency, at least in part, by examining judicial decision making and judicial activism in the 1990s in the high courts of the United States, Canada, and Australia. …