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.