Judicial Activism in Comparative Perspective

Acknowledgments

First, we would like to thank all our contributors who, despite the difficulties of the last few years, believed in the project and participated in its different iterations, all the way to completion. Special thanks to Richard Pacelle, who pioneered both this project and the new Book Series where it belongs, and who supported this project throughout all its phases.

This project started in 2020, with a collaborative ‘conference within a conference’ at the Southern Political Science Association Annual Meeting in San Juan, Puerto Rico, followed by an online workshop hosted at the 2021 Annual Meeting a year later. We would like to thank the Association for the opportunity, and acknowledge the input of all our participants in the conference. We also thank our respective home institutions - Boise State University and La Trobe University- for the financial and logistic support to complete this project.

In these challenging pandemic times, we would also like to acknowledge our family, friends, and esteemed colleagues, who have been an invaluable source of support to complete a long-term project of this nature. Our heartfelt gratitude to all of you.

Finally, thanks to Peter Lang International Publishers, and especially to Anthony Mason and everyone involved in the production of this book, for both their confidence in this project, and their patience to see it to completion.

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Studying Judicial Activism in Comparative Perspective

Lori Hausegger and Raul Sanchez Urribarri

This book focuses on judicial activism in comparative perspective. Judicial activism is a contested concept frequently used by scholars, journalists, lawyers, and even politicians, to broadly describe the courts’ deliberate action that transcends the judiciary’s role as a neutral conflict-adjudicator. A quick glance at any news source regarding the use of ‘judicial activism’, shows how the term is used to describe a wide variety of examples in which courts or judges behave in a way that is perceived to overstep or violate “their cultural standards of judicial role” (Green, 2009, p. 1199). This occurs, across different socio-political contexts, legal systems, types of proceedings and other circumstances. Whilst the term is common in U.S. parlance about the courts’ intervention in politics and policy-making—often with a negative or pejorative connotation—it comes up in Australia, Brazil, Colombia, Great Britain, Israel, Turkey, and a wide variety of other nations, through different types of actors with various political proclivities.

When described in a negative way, an ‘activist judiciary’ is understood to be an abusive, politicized, overzealous or unprofessional institution that disregards its true mission in a democratic context, and its role as a guarantor of the rule of law. As Kermit Roosevelt points out, claiming that a court or decision is ‘activist’ has become “a rhetorically charged way of saying that you disagree with a decision or think a decision is wrong” (Rodia, citing Roosevelt, 2022). But there also seems to be ‘good activism’, described as virtuous from the eye of the beholder, with courts then being described as rising to the occasion and going beyond legal, institutional, or political constraints to do ‘what is right’ in a case. Some proponents of this perspective see judicial activism as a corrector to the excesses of democracy. For instance, Sherry argues, “too little activism produces worse consequences than does too much. If we cannot assure that the judges tread the perfect middle ground (and we cannot), it is better to have an overly aggressive judiciary than an overly restrained one” (2013, 1).

Yet, despite the common use of the term in popular discourse and research on law, courts, and judicial decision-making, works about judicial activism seldom engage in analyses that have in mind more than one court, judge, or decision. Often, commentary on judicial activism fails to link discussions about the phenomena to rigorous conceptual frameworks. Scholarly debates centered on the experiences of specific judicial systems seldom address the transferability of their definitions or refer to an overarching comparative theoretical reference. Without such, it is hard to study judicial activism in ways that assist comparative inquiry. Moreover, since the term has been frequently used in the U.S. context, some debates that take place in other jurisdictions are, consciously or not, informed by an institutional reality and socio-political circumstances that might differ significantly from the one under study. As a result, we are left with debates that fail to communicate with one another effectively.

To bridge this gap, this volume seeks to articulate a comparative perspective on judicial activism, bringing together a series of theoretical and empirical studies across different socio-political and institutional contexts. We hope that this exercise not only demonstrates the complexity of the concept, but also helps us make sense of the different meanings of judicial activism, while achieving a more nuanced picture about the conditions under which it tends to emerge, in what ways, and to what effect. We ground the discussion on a selection of countries across different types of political regimes and legal systems, developed by scholars specialized in these jurisdictions. Each contributes to the common goal of going beyond isolated case study analyses to explore judicial activism in ways that will contribute to a genuine comparative debate. In particular, the present volume focuses on three examples from Western democracies that have varying experiences with the more U.S.-Centric form of judicial activism: the U.S., Canada, and the U.K. After grounding the discussion in the more often studied common law experience, the volume then turns to six Latin American countries with very different experiences with judicial activism, democracy and liberal constitutionalism: Brazil, Colombia, Costa Rica, Mexico, Paraguay, and Venezuela. This focus on a wide variety of Latin American countries, allows for a more complete consideration of the complexity of judicial activism, using a part of the world where debates on the concept have been widespread in popular discourse and academia in recent years. These case studies are analyzed with reference to a common conceptual core, assisted by a beginning theoretical essay and two concluding cross-national studies highlighting different theoretical and methodological approaches.

Based on those premises, the present volume has sought to develop a conversation focused on the following key questions: What is understood by judicial activism in different jurisdictions? Beyond a superficial agreement, are we talking about the same phenomenon across countries and systems (or over time in a specific jurisdiction), and to what extent? How do we measure judicial activism? Do these measurements, and the assumptions upon which they rest, travel well in different contexts and times? How, and to what degree, can different actors expect that courts will go beyond their expected roles to engage in rights protection? Given rising trends of growing authoritarian and political polarization world-wide—and the political manipulation of courts in the U.S. and over the world—to what degree are these efforts affecting the propensity of courts to engage in judicial activism? How is judicial activism related to processes of democratization or, conversely, democratic backsliding? This book brings together original works by scholars with expertise in different thematic areas, methodological approaches, and regional expertise to address these questions. We have strived to bring together scholars specialized in comparative judicial politics and comparative constitutionalism –two fields that have grown increasingly intertwined, and which require increasing collaboration and cross-fertilization to study law and politics cross-nationally. We have developed this book based on a vibrant exchange among peers, by gathering the contributors to this book on two different occasions, allowing us to exchange views on the project’s mission, goals, and key debates. We hope the result is a book that is sensitive to the wide variety of experiences with judicial activism across the jurisdictions studied and beyond.