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The Campaign Against the Courts

The Campaign Against the Courts

A History of the Judicial Activism Debate

By Tanya Josev


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.

What is judicial activism? What are the origins of the terminology? Who has been accused of practising activism? This book provides a history of the term ‘judicial activism’, from its inception as a historian’s catchphrase in the United States in the 1940s, to its nursery years in the universities, and finally, to its more recent manifestation in both Australia and the United States as part of election campaigns and the politics of anti-elitism. Covering diverse topics such as constitutional scholarship, the ‘history wars’ in Australia, and United States Presidential campaigns, The Campaign Against the Courts also charts the migration of the debate over judicial activism from the United States to Australia over the past 25 years.

For those interested in law, politics and history, The Campaign Against the Courts provides a narrative account of one of the most controversial topics in law-making today.

Praise for the book:

“A forensic exploration of the strange territory that turned conservatives in America and then Australia against the courts. Here are the elements of every great story: sex, race and power.”
Award-winning author and journalist, David Marr

“Tanya Josev deftly traces from its American origins in 1947 the history of an idea - judicial activism - but this is no orthodox legal history. Josev also presents a gripping account of the culture and history wars of the United States, along with their Australian echoes in the age of Mabo and Wik. This is a fascinating story of political opportunism, ideological obsession, judicial careerism and, amid the tumult and the shouting, a determined quest for laws in tune with the needs of a modern society.”
Acclaimed historian of Australian history, Frank Bongiorno, Professor of History, The Australian National University

“In this fascinating foray in legal history, Tanya Josev traces the migration of the slippery concept of judicial activism from the post-New Deal United States to contemporary Australia … Josev astutely explains how these differences in legal culture have evolved, while also identifying a remarkable connection in the legal history of both nations. Australian and American scholars alike will benefit from her deft analysis.”
Pulitzer prize-winning legal historian, Jack Rakove, Professor of History and Political Science, Stanford University


List of Abbreviations


Part I: 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 II: 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



Although a subject of endless fascination in the hermetic world of the legal profession, the judiciary seldom excites the interest of the broader public. Despite the efforts of senior judges to promote understanding of the legal system, the community seems largely content simply to trust that the machinery of justice is working as intended.
         This general indifference towards the work of the courts means that it is all the more arresting when public debate is punctuated by one of its periodic bouts of anti-judicial vituperation. Not all of these episodes are alike: some involve the excoriation of the judiciary for alleged softness on crime, whereas others turn on the alleged illegitimacy of a controversial judgment. Yet they are each marked by a willingness on the part of tabloids, shock jocks, and even government ministers to denigrate a branch of government that, by convention, refuses to enter into its own defence.
         When such debates are afoot, few accusations are levelled as freely as the suggestion that the impugned judges have engaged in 'judicial activism'. It is with the origins and evolution of this epithet that Tanya Josev is concerned in this impeccably researched and eminently topical book. …
         In combining a masterful understanding of law and jurisprudence with a formidable marshalling of a mass of illuminating primary material, Josev has shed new light on the relationship between judges and the public which they serve. Read full review...

John Eldridge, Australian Book Review, Jan-Feb 2018

[I] discovered not a 'great story [of ] sex, race and power' as David Marr's review on the back cover promised, but a great story
 of the development of the term 'judicial activism' from its first use in the United States in the middle of the last century 
to its adoption in Australia in the early 1990s and continuing right up to the recent appointment of Justice Edelman to the High Court. …
         Josev describes how the term emerged 
in the United States in the middle of
 the last century as a recognition of the perceived countermajoritarian difficulty of unelected and unaccountable judges being able to thwart the will of the majority by striking down legislation duly enacted by the people's representatives. It remained dormant as a term in Australia, however, until the early 1990s following the decisions in Mabo (1992) and later Wik (1996).
         In her epilogue, Josev identifies eight separate meanings for judicial activism that have been used, each of which can be the subject of similar criticisms. Indeed the absence of any accepted or even commonly used definition demonstrates the real problem with its use. As such, judicial activism is a moveable term of abuse that is unhelpful and uninformative; it should be avoided in any legal or academic debate; and it is best left for use, if at all, in the media. Whatever position one takes, however, this excellent book provides ample ammunition for the reader to enter into the debate well-informed and ready for battle! Read full review...

Anthony Cheshire, Bar News, NSW Bar Association, Spring 2017


Published 14 July 2017
Publisher The Federation Press
ISBN 9781760021436
Australian RRP $49.95
International Price $45.00
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Law - Judges & Courts
Law - Legal History
Law - Legal Profession / Legal Practice

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