Judicial Activism: A Constitutional Check or Democratic Overreach?

Judicial activism empowers courts to interpret and enforce constitutional principles, often stepping in when legislatures fail. Especially in federal systems, it serves as a safeguard against governmental overreach, promoting civil rights, social justice, and democratic accountability through judicial review and constitutional interpretation.

Judicial activism can be described as a situation, when the apex court of a state steps out of its way to create new laws through the process or either judicial review or suo moto cognizance of a situation within  the internal matters of a state. Separation of powers is a cornerstone of a functioning, healthy democracy due to designated competencies of all organs of a state. When the government entrusts interpretation and enforcement of laws to jurists, it essentially gives way for courts to rule against them to uphold constitutional values (Ferejohn, Rosenbluth and Shipan). Here we realise two distinct characteristics where that for judicial activism to exist, there must be some semblance of separation of powers within the state structure, either a completely federal or a quasi-federal structure. Secondly, the need for a written constitution is necessary, as a guideline for implementation to be used by the courts or the apex judicial institution is paramount. Therefore, the event of judicial review is usually retained to federal states. Courts undertaking judicial review make decisions with potentially large political consequences and hence make themselves unelected political actors (Ferejohn, Rosenbluth and Shipan).

            Judicial activism can be seen as the situation in which, the judiciary fills in the gaps of the legislature and cleans up after legislative inaction or drafting of unconstitutional bills of law. The essence of judicial activism stems from the degree of independence of the functioning of the organ within the government structure. Judicial activism is, by default, a hallmark of a healthy functioning state, since the judiciary is acting as an overarching figure over majoritarian institutions or acts of majoritarianism by defending the constitution and its values. Arguments against judicial activism state that since judiciaries are not halls of popular sovereignty, they have no right in overriding legislative bills or acts and that the legislature is the most effective organisation in making decisions within a democracy (Ferejohn, Rosenbluth and Shipan). A simple critique of judicial activism, is a matter of excessive use where there remain inconsistencies within judgements of the courts, thereby setting disbalanced vertical as well as horizontal precedents. Vertical precedent simply refers to the binding nature of higher courts on all lower courts, in a chain of command fashion whereas horizontal precedent requires a court to stand by decisions taken in the past by the same court on a similar matter or with similar legal quality, in what is commonly referred to as stare decisis (Kmiec). Looking at a case-by-case basis will elucidate the point further, where judicial activism is not a threat but rather augments the basic tenets of a democratic state. Arguments which oppose principles such as judicial activism state, it brings out cracks and dents within the functioning of a state. These arguments inherently misrepresent the theory of judicial activism since democratic systems are not without flaws but rather systems that engage in perpetual and cyclical progress both ideologically and materially to meet the needs of the people, democracy is always an ongoing process and not an end goal you can reach.

            When we look at the case of the United States of America, we notice the expansive use of judicial activism through not only review but also restraint in the formation of democratic precedents. Judicial activism in the United States is seen as a lens of constitutional interpretation and looks at the constitution as an ever-changing document. This approach was championed by jurists such as Justice William Brennan, who argued for an expansive definition of civil liberties and equality within state policy decisions (Brennan). One such example would be Brown v. Board of Education(1954) where the Supreme Court took the decision in desegregation of schools and overturned the “separate but equal” doctrine as noted within Plessy v. Ferguson(1886) and expanded on the Equal Protection Clause within the Fourteenth Amendment ( United States Government). Activism in the United States is driven by the need for protection and expansion of civil rights within a liberal institutional framework, where there exists a strict federal structure. Judicial activism within this institutional framework has created longstanding civic and socio-economic policy, especially with the doctrine of the need of standing where there needs to violable harm to a plaintiff in the need for the apex court to take action (Scalia). Such instances are different when we look at constitutionalism and courts within East Asia, where the courts have created and enhanced a form of dialogic judicial review, where decisions are open for legislative reversal and modification, which allows the various organs of the state institution framework to communicate in a dialectic. Courts within East Asia exercise activism, though through prudence and are reluctant in overturning legislative decisions (Lin). For an instance, in an example of building democratic values and enhancement of state functioning through provision of rights and guarantees to its citizens, the Taiwan Constitutional Court upheld and legalised same-sex marriage. This marks a significant step in the creation of social policy and robustness of a judiciary within a state which is fighting for its own identity and sovereign territory[1]. The court adopts a process-centric approach, through the delayed declaration of invalidity (Lin) which allows for the legislature to create amendments which is different than the confrontational style adopted within the United States of America. Similarly, the Supreme Court of the Philippines possess a robust judicial review process, where is conducts great oversight and bars executive overreach. During a time of martial law, the courts actively engaged in redistributive justice and policymaking towards the ‘have-nots’ to showcase legitimacy (Haynie). The same court then, post the 1987 constitutional reforms performed a so-called balancing role “consistent with the pursuit of social justice as a constitutional principle” ( L. Panao and De Leon).

Looking at the Indian experience with judicial review, we can state that our theory of judicial review is grounded in social justice and the need to protect the fundamental rights within the Constitution. A variety of cases exist which bring out activist tendencies within the Supreme Court of India. Kesavananda Bharti v. State of Kerela(1973[2]) was a hallmark hearing where the Supreme Court upheld the basic structure of the constitution and struck down constitutional amendments to the preamble of the constitution and announced the “Basic Structure Doctrine" and was the bulwark against legislative overreach. Acts of judicial activism have also created doctrines which are necessary for everyday functioning of courts. Within Maneka Gandhi v. Union of India(1978) expanded the interpretation of Article 21 and ruled that procedure established by law must be “fair, just and reasonable” and that the restrictive definition of liberty in A.K. Gopalan v. State of Madras was restrictive (Sathe). This enhanced and created what we know as substantive due process of law. Judicial activism also played a counter majoritarian role, through aforementioned cases which gave the  judiciary significant power to act as a check on the legislature​.

Judicial activism, as examined in this analysis, is not simply a deviation from the conventional separation of powers but a necessary element in modern constitutional democracies. It serves as a critical safeguard against legislative and executive overreach, ensuring the protection of fundamental rights and upholding constitutional values. In federal or quasi-federal systems with a written constitution, judicial review becomes an essential tool through which courts can address gaps left by legislative inaction or the drafting of unconstitutional laws (S. Sathe). The experiences of judicial activism in the United States and India demonstrate how courts, through constitutional interpretation, have expanded civil liberties and social justice. Judicial activism, therefore, is not an inherent threat to democracy but an evolving mechanism that strengthens democratic processes by safeguarding constitutionalism. By acting within the bounds of the law and upholding constitutional principles, judiciaries worldwide play a vital role in ensuring justice, equity, and the ongoing development of democratic values.

Works Cited

Ferejohn, John, Frances Rosenbluth and Charles Shipan. “COMPARATIVE JUDICIAL POLITICS.” BOIX, CARLES and SUSAN C. STOKES. Oxford Handbook of Comparitive Politics. London: Oxford University Press, 2007. 727-751.

Kmiec, Keenan D. “The Origin and Current Meanings of "Judicial Activism".” California Law Review (2004): 1442-1447.

United States Government. “Milestone Documents.” n.d. National Archives. 1 October 2024. <https://www.archives.gov/milestone-documents/brown-v-board-of-education>.

Scalia, Antonin. “Originalism: The Lesser Evil.” University of Cincinnati Law Review (1989).

Lin, Chien-Chih. “Dialogic judicial review and its problems in East Asia.” International Journal of Constitutional Law 17.2 (2019): 701-713.

Haynie, Stacia L. “Resource Inequalities and Litigation Outcomes in the Philippine Supreme Court.” The Journal of Politics (1994).

L. Panao, Rogelio Alicor and Bea Xandra De Leon. “Balancing the interests of labor and capital: an empirical analysis of Philippine Supreme Court labor cases from 1987 to 2016.” Philippine Political Science Journal (2018): 24-46.

Brennan, William. “The Constitution of the United States: Contemporary Ratification.” Harvard Law Review (1986).

Sathe, S. P. “Judicial Activism: The Indian Experience .” Washington University Journal of Law and Policy (2001): 30-106.

Sathe, S.P. “Judicial Activism in India: Transgressing Borders and Enforcing Limits.” Oxford University Press (2002).

[1] References made to ADIZ Violations by the People’s Republic of China over Taiwanese sovereign waters

[2] Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.Ju