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The Campaign Against the Courts

A History of the Judicial Activism Debate

Tanya Josev



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Federation Press
01 August 2017
Politics & government; International law; International human rights law; International courts & procedures; Family law
The term ‘judicial activism' is seemingly ubiquitous in Australia and the United States today but what does it mean and what are its origins? Used by prominent public figures to describe and condemn decisions of national importance, ‘judicial activism' was initially employed as a descriptor of judicial behaviour by scholars. Josev follows its adoption during the culture and history wars of both countries to its current manifestation as part of election campaigns and the politics of anti-elitism. This is a timely account of one of the most controversial topics in law-making today.

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.
By:   Tanya Josev
Imprint:   Federation Press
Country of Publication:   Australia
Dimensions:   Height: 235mm,  Width: 159mm, 
Weight:   390g
ISBN:   9781760021436
ISBN 10:   1760021431
Pages:   256
Publication Date:   01 August 2017
Audience:   College/higher education ,  Professional and scholarly ,  Further / Higher Education ,  A / AS level
Format:   Paperback
Publisher's Status:   Active
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

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