The Campaign Against the Courts A History of the Judicial Activism Debate

The term ‘judicial activism’ is seemingly ubiquitous in Australia and the United States today. Prominent public figures, from politicians to cardinals, commentators to business executives, have used this terminology to condemn superior courts and certain judicial outcomes. In Australia, High Court decisions on matters such as native title, property law and the interpretation of Australian history (for instance, Mabo); constitutional rights; the law of negligence; and migration law have been attacked in some quarters as being ‘undemocratic’ and ‘activist’, and as exemplifying the growing elitism of higher court judges. In the United States, decisions relating to reproductive rights; gun laws; school prayer; racial segregation and the interpretation of American history (for instance, Brown v Board of Education) have also been criticised on this basis. Yet as the judicial activism critique is increasingly adopted by the popular media, many lawyers and judges are hesitant to engage with the terminology, seeing it as nothing more than an empty pejorative.

Introduction Part 1: The United States 1. The Origins of the Judicial Activism Terminology 2. From Description to Slogan: The Activist/Self-Restraint Divide in US Public Debate Part 2: Australia 3. ‘Strict and Complete Legalism’ in the High Court of Australia 4. The History Wars and the High Court 5. Judicial Activism as Elitism: Wik, the Implied Rights Cases and Beyond Epilogue: Judicial Activism in Australia Today

Tanya Josev (BA LLB (Hons) PhD(Melb)) is a Senior Lecturer in the Melbourne Law School, University of Melbourne.