What we’re talking about when we talk about ‘judicial activism’

Emmet Macfarlane commenting on the recent set of articles on judicial activism:

In the wake of landmark decisions on assisted suicide and the right to strike (among others), there appears to be a new renaissance for decrying the “judicial activism” of the Supreme Court of Canada.

Andrew Coyne accuses the Court of ignoring precedent, rewriting the constitution and basically lacking “any rational basis” for its decisions. Conrad Black is equally critical. Stockwell Day accuses the Court of writing law, rather than merely applying existing law. Gordon Gibson arguably goes even farther, calling the Court “the greatest threat to our democracy,” and accusing it of “making” rather than merely “interpreting” the law. And Brian Lee Crowley complains of the “unaccountable” and virtually unlimited control judges have over the meaning of the Charter, allowing them to trump legislation and introduce uncertainty into the law. In the view of all of these critics, it is asserted that judges have abandoned the “appropriate” level of judicial restraint.

…Instead, judicial activism has an empirical definition that can be understood in both a quantitative and qualitative sense. In a quantitative sense, activism can be measured based on the frequency with which the Court invalidates laws or impacts government policy. A deferential court that never overturns government decisions is not activist, a court that always does so is the most activist. As political scientists like Christopher Manfredi argue, judicial activism can be seen as being on a spectrum. Our Supreme Court is “activist” in about 35 percent of Charter cases.

But saying that does not make a claim about whether this level of activism is inappropriate or desirable. Indeed, given the whole purpose of the Charter of Rights, a completely “restrained” Court would arguably be as problematic as one that is constantly making policy. Whether the Court is “too activist” is a normative judgment that people are free to argue about. But under this definition, to say that activism is meaningless or does not exist would be incorrect.

…Judicial activism is a tricky concept, and it is often used in completely subjective ways. The public debate about judicial power is incredibly important precisely because the Court wields so much policy influence. A lot of the time charges of “activism” do not seem particularly helpful in clarifying the terms of that debate. A big problem is that the Court’s critics and critics of judicial activism are both wrong, albeit in opposite directions. The former think that judges should just stick to “the law,” as if that were possible, while the latter think the Court’s decisions are only about the law because the policy consequences are merely the result of what the constitution means.

Dismissing the notion of judicial activism entirely is to deny that judges have the discretion—which they invariably exercise—to act with more or less deference to the decisions of democratically elected governments. In this sense, the concept itself remains useful and important.

What we’re talking about when we talk about ‘judicial activism’