Does Judicial Activism damaged the Democracy in Canada?
Thomas Guoting Guo
'Judicial activism' is aterm not much liked by judges. Used pejoratively it suggests that the ethicaljudge is a passive, mechanical creature, a rather unflattering picture of judicialwork. Used eulogistically it seems to imply that bold and creative judges areakin to political activists, a not very reputable bunch and another unwelcomejudicial image.
judicial activism"badly impairs both qualities, and in that way tends to the destruction of therule of law.judicial activism" is here used to mean using judicial power for a purposeother than that for which it was granted, namely doing justice according to lawin the particular case.
Tom put it that “ajudicial activist is essentially (1) a judge who does not apply all and onlysuch relevant, existing, clear, positive law as is available, and (2) a judgewho makes such decisions by drawing on his or her moral, political or religiousviews at to what the content of the law should be”. The judicial activist hasan overt or operative agenda for law reform in identifiable directions thatrequire moral and political rather than legal legitimation. This is oftendescribed as making policy decisions.
In so far as judicialactivism is a failure to apply existing law it may be called 'negative judicialactivism', and in so far as it replaces existing clear and relevant law withnew rules, something which appellate courts have the capacity to do, it may becalled 'positive judicial activism'. To this we must add adjudication which,when positive law is either not clear or not available, goes beyond what isnecessary to achieve clarity and consistency in law in a minimalist way. I callthis 'opportunistic activism'.
Tom Campbell declared that “Judicial activism can be so wrong as to be treasonable, because it is a breach of trust and an abuse of judicial power that undermines the foundations of constitutional democracy”. In using the term treason I am not imputing evil intent to judges or others whose conduct undermines the democratic rule of positive law. Often judicial activism is quite the reverse: a misguided attempt to do what is right, sometimes on a naive assumption that their moral views are shared by all reasonable people. This can make the culture of judicial activism dangerously self-confident, arrogant and self-righteous.The conception of a formally good legal system is also fundamental to a particular sort of justice, formal justice, the justice of treating like cases alike in terms of pre-existent criteria. This sort of justice cannot be achieved unless there is an operative system of general rules impartially applied. Democracy is a system set up to handle and resolves these disagreements in so far as this is possible while still being able to have an operative set of rules which serve until such time as they are changed by appropriately democratic means.Tom Campbell suggested that judges who cannot bring themselves to enforce existing law ought to resign. At least in the straightforward cases of negative activism - failure to apply clear and relevant authoritative rules - judges always do have a choice. If applying a clear law goes against their moral convictions, then they can and should resign rather than put the law to one side or replace it with another.
A decision is "substantively activist" if the result itreached is contrary to clear constitutional or statutory text or lacksaffirmative support in the text being interpreted, or is reached by overrulingprior binding precedent without adequate justification in light of applicablestare decisis rules or by distinguishing or limiting binding precedents ongrounds that were not material to the results reached in the prior cases.
The topic of judicial activism in Canada generates considerable disagreement. At a recent conference, retired Supreme Court of Canada Justice John Major stated that "there is no such thing as judicial activism in Canada." In 2001, speaking in his capacity as the Canadian Alliance's Justice critic, the current federal Minister of Justice and Attorney General, Vic Toews, told Parliament that the Supreme Court has "engaged in a frenzy of constitutional experimentation that resulted in the judiciary substituting its legal and societal preferences for those made by the elected representatives of the people . . . [producing] legal and constitutional anarchy." One prominent constitutional scholar fears that the debate on judicial activism in Canada has begun to produce excessive judicial deference that allows legislatures and officials to act without scrutiny by the judiciary concerning the effects of state action on vulnerable minorities.Judge Frank Easterbrook opened with an ostensibly safe sentence: "Everyone scorns judicial activism, that notoriously slippery term." Arthur Schlesinger Jr. introduced the term "judicial activism" to the public in a Fortune magazine article in January 1947. Schlesinger's Judicial Activists believe that law and politics are inseparable. According to the Judicial Activists, Schlesinger writes, "The Court cannot escape politics: therefore, let it use its political power for wholesome social purposes."Schlesinger suggests the layers of the clash: unelected judges versus democratically enacted statutes; results-oriented judging versus principled decisionmaking; strict versus creative use of precedent; democratic supremacy versus human rights; law versus politics; and other equally fundamental dichotomies.McWhinney identifies Holmes's "two-sided" view of the judicial role. First, there is the "judicial self-restraint" concept Holmes espouses in his famous dissent in Lochner v. New York,which amounts to a "presumption of constitutionality" for legislation even if a judge personally does not care for it. Judicial self-restraint is at odds, though, with another component of Holmes' judicial philosophy: the "tradition of judicial activism, involving the notion that in certain areas of subject matter, notably the field of political and civil rights, the Court should look with a jealous eye on legislation cutting down or trenching on those rights." McWhinney notes the oft-cited objection that judicial activism undermines the principle of majority rule, imposing "the will of the 'nine old men' on the prime representatives of the people, the legislature." When the judiciary refuses to be guided by original intent in its interpretation of the constitution, it exercises an extra-constitutional and arbitrary form of power. Such unchecked judicial supremacy is as threatening to liberty and democracy as the forms of tyranny against which it was itself designed as a safeguard. the 'noble lie' that judges do not make law,Judge Hutcheson authored the first recorded use of the term "judicial activism" in an opinion overruling a trial court decision by then-District Judge Skelly Wright, in the case of Theriot v. Mercer in 1989.The issue, as these critics see it, is not one of liberalism versus conservatism, but one of representative democratic government versus judicial autocracy.The idea of judicial activism has been around far longer than the term. Before the twentieth century, legal scholars squared off over the concept of judicial legislation, that is, judges making positive law.Section 1 allows legislatures to justify reasonable limits on the rights that the court finds in the Charter. Yet, a majority of the Supreme Court has never held that a particular breach of section 7 was justified under section 1.Section 33 of the Charter allows legislatures to enact laws that override certain Charter rights, including: the "fundamental freedoms" of freedom of religion, freedom of expression, freedom of the press, and freedom of association; the "legal rights" such as the right to be secure from unreasonable search and seizure, and the right not to be arbitrarily detained or imprisoned; and the equality rights.Section 43 of Criminal Code of Canada bolster the assertion made by the Chief Justice of Canada at a conference that "there is no clear demarcation between applying the law, interpreting the law, and making the law."Striking Down Arguably Constitutional Actions of Other Branches Legal academics often describe judicial invalidation of legislative enactment as "judicial activism." As Greg Jone wrote, "At the broadest level, judicial activism is any occasion where a court intervenes and strikes down a piece of duly enacted legislation." Professor Lino Graglia: "By judicial activism I mean, quite simply and specifically, the practice by judges of disallowing policy choices by other governmental officials or institutions that the Constitution does not clearly prohibit." As Christopher Manfredi observes, "If judicial review evolves such that political power in its judicial guise is limited only by a constitution whose meaning the courts alone define, then judicial power is no longer itself constrained by constitutional limits."Constitutional law precedents, meanwhile, are entitled to less deference "because the difficulty of amending the Constitution makes the Court the only effective resort for changing obsolete constitutional doctrine."Judge Goodwin states this point more succinctly: Judicial activism means a decision one does not like.