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
The Campaign Against the Courts was awarded the Law and Society Association of Australia and New Zealand’s ECR (early career researcher) prize in 2018. The prize was awarded for the most outstanding contribution to the field of law and society.
Acknowledgments
List of Abbreviations
Introduction
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
Bibliography
Index
Josev developed this book during doctoral study conducted at the University of Melbourne and New York University. The trans-Pacific nature of the research shines through in the book’s rich treatment … of the origins and development of the judicial activism debate in the United States. …
Few would deny the importance of this function [to protect individuals and minorities against the larger public], the disagreement, of course, is as to when a judge is faithfully fulfilling the constitutionally entrusted protective duty and when, on the contrary, the independence of the judicial role is merely serving as cover for a judge to advance a particular personal or policy preference. Drawing the line between these two practices is not always easy, but we are all far better placed to do so with Josev’s book in hand.
Julian R Murphy, Australian Law Journal, 2019, 93
What makes Josev’s account of judicial activism so formidable is not only how she highlights that judicial activism means different things for different people at different points of times, but that her analysis is wholly comfortable with transferring between the shifting vantage points over adjudicative legitimacy. She deftly explains different perspectives on the judiciary with great analytical empathy. This is particularly impressive when one considers that there are few pieces of legal scholarship that engage with multiple points of view. …
Josev … is like a consummate arthouse film director, skilfully cutting between camera angles. The end result is an impressive and thought-provoking piece of scholarship.
Liz Fisher, American Journal of Legal History, 2019
These days “judicial activism”, though a fluid concept, is seen as a pejorative description of an approach to decision-making by judges. That was not always the case. When first coined by a young Arthur Schlesinger Jr in an article about the US Supreme Court published in Fortune magazine in 1947, the terminology did not necessarily connote criticism. Over time, in the US, it developed into what the author calls a false paradigm between restraint and activism. Interestingly, it was only in the mid-1990s that the terminology came to be generally used in Australia to refer to the approach taken by some members of the High Court. By that time, it had attained the pejorative association it has today. While the author identifies trends within the High Court from the 1980s, it was only in the mid-1990s with a series of judgments from the “Mason Court” that it was used widely in Australia by politicians, journalists, historians and commentators.
The author points out that the label of judicial activism was by and large not used in the era of the “Gleeson High Court”, though it was used to describe the approach of some Federal Court judges in migration cases. She also considers that the “French Court” has “not been under the same intense invigilation under the rubric of activism in recent years”. While the text does consider recent High Court appointees, it precedes the appointment of the current Chief Justice.
Commentary is drawn from consideration of numerous High Court cases. Insight is also given into the frequent misunderstanding between the judicial development of the common law and the interpretative approach to statute and the Constitution. The text is scholarly, well footnoted and indexed, and contains a comprehensive bibliography. It will be of use to constitutional lawyers, historians, legal commentators and those interested in the history and development of the High Court of Australia.
Cahal Fairfield, InPrint, Law Institute Journal Victoria, May 2018
I have some sympathy for the view of Randy Barnett, quoted by Josev early in her thesis (and bookended by similar remarks from Gleeson CJ much nearer its end), that the term “judicial activism” should be abandoned because “it allowed constitutional commentators to criticise the Court without having to offer any expertise, or offer any substantive reasoning, in doing so.” Indeed, by the final quarter of the book, Josev is suggesting that this is precisely what has occurred, with the term being used now almost exclusively by journalists of the “New Right” as an epithet, and avoided by the legal academy.
This book canvasses the history of the expression “judicial activism”, particularly though its origin in the United States … Josev explores concepts of “judicial activism” from the illegitimate exercise of judicial power, to the mere casting off the “cloak of strict legalism” to afford a view of how the sausages are made. She progresses from the largely academic and philosophical differences within the profession about the limits of judicial scope, to the co-opting of the term as part of the tactics used by neo-conservatives to destabilise institutions and reframe minorities as “elites” with boutique interests incompatible with the interests of mainstream Australia.
It is an engaging book … the background and history of individuals involved in this debate, the relationships amongst the judges and academics, are fascinating, and I have come away with a laundry list of further reading on this stimulating topic.
Sarah Byrne, Ethos, ACT Law Society, April 2018
Tanya Josev’s monograph, The Campaign against the Courts, is a rich historical examination of the social meaning of the term ‘judicial activism’ within the United States and Australia. It is a new comparative study of the many actors and contingencies that shaped public perceptions of the constitutional role of courts in these democracies over the last century. …
Josev’s immensely readable work demonstrates how historical approaches can provide penetrating accounts of the role of law within society. By concentrating on a part of law that has captured the imagination of the public and politicians, Josev’s book reveals how the culture and political dynamic within the United States and Australia play a defining role in creating the judiciary’s legacy. It is a model contribution to historical law and society scholarship. …
Josev’ s book should be of great interest to public law and jurisprudential scholars as well as political scientists and historians. It is a valuable resource for teachers of legal reasoning or introduction to law and I have already put it to use in a legal history subject. In fact, both academics and the general public alike should read it. …
In sum, The Campaign against the Courts is an enjoyable, thought provoking and very welcome addition to Australian legal history.
Susan Bartie, University of New South Wales Law Journal, March 2018
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
The Campaign Against the Courts: A History of the Judicial Activism Debate provides readers with an in-depth historical analysis of what is meant by the term “judicial activism” from both an American and Australian perspective. Appealing to readers with an all-encompassing interest in law, politics and history, the text offers a broad educational insight into the evolution of “activism” as an expression that is primarily used to denunciate judicial decisions that arguably surpass the intended interpretative function of the judiciary. … this text is stimulating and exceptionally well-researched. The comprehensive historical analysis of judicial activism is of such captivating quality that the readership will not be limited to law students and legal practitioners, but will extend to those with a general interest in politics and history. In summary, the text provides a useful tool in enabling the reader to answer the ultimate question: is judicial activism a gross abuse of judicial power? Or, in the words of former Justice of the High Court of Australia, Michael Kirby, is it the case that “where there is injustice, a little judicial activism will sometimes be a good thing”?
Dimity Parr, Qld Lawyer, 2017
