The changing meanings of 'judicial activism' in the United States and Australia, 1947-2008

Abstract

This thesis is concerned with the origins and changing usages of the term ‘judicial activism’ from its first use in the 1940s to the very recent past. It examines how the term was coined in 1947 by a young historian in the United States to describe judges who believed that judicial power should be used to promote social objectives. This was to be contrasted with judges described as ‘champions of self-restraint’, who approached the use of judicial power as an instrument of review and left the other branches of government to deal with matters of policy. This dichotomous understanding of judicial method was taken up by legal scholars and political scientists, and later, by the popular media as a paradigm through which to evaluate cases.

A settled definition of judicial activism eluded lawyers, scholars and commentators, but the terminology took on a new meaning in the late 1960s as a political slogan in the United States. Presidents Nixon and later, President Reagan, engaged in political campaigns against what they saw as the excesses of judicial activism. As this use of the term flourished, public commentary became increasingly polemical and more remote from meaningful discussion of judicial method. Activism was no longer considered as the antonym of self-restraint, but instead as illegitimate behaviour. It had now become a derisory epithet, a descriptor of judges who are deemed to have exceeded power, and trespassed into the political arena.

This thesis charts the history of the use of the judicial activism terminology, first in the United States and then in Australia. It argues that the term became known to Australian scholars as early as the 1950s, but remained dormant for over forty years because the academy deemed it inapplicable to the work of the High Court of Australia. It then examines the emergence of the term in Australia following a series of controversial decisions of the High Court in the 1990s on native title and on implied rights in the Constitution. A traditional legal account of this period suggests that the activism terminology arose to describe the new approach of the High Court, insofar as it had begun openly taking into account community values and expectations as part of the interpretative process, and engaging in policy-based analysis in the development of the common law. The thesis suggests this is an incomplete explanation of the emergence of the terminology in Australia because the initial critics of activism relied on sources far removed from interpretive theory to bolster their claims. This thesis argues that a fuller understanding of the charge of activism is gained by considering the Court’s decisions in the context of Australia’s political culture in the 1990s.

It should be emphasised that this is neither a thesis in constitutional law, nor one that compares the arguments in the two countries. Rather, it is a study of how, when and why the activist terminology was transported from the United States to Australia. It is a cross-disciplinary study that employs both historical and legal methodologies to examine the emergence of the charge of judicial activism in Australia.