A thought in response to Emmett Macfarlane’s recent piece in Maclean’s on judicial activism.
First, two quick caveats. This is not my area, so take what what I have to say with the necessary grains of salt. Second, I am treating this particular Maclean’s piece in a vacuum. I expect Macfarlane weighs in on the substance of this line of critique elsewhere, but I have not yet had time to read his book (sorry Emmett… it’s on the list for after I finish my dissertation.)
So, to begin with, I like much of what Macfarlane has to say here. I certainly agree that the court’s interpretation of the constitution both necessary and fallible, and that such interpretations are necessarily informed by judges’ biases on some level.
One thing I’m not convinced by, however, is Macfarlane’s operationalized definition of “judicial activism.” It strikes me that he is omitting a significant piece of the puzzle in defining the concept in the way he does (i.e. quantitatively as a measure of the absolute number of cases overturned, and qualitatively in terms of the force with which the court repudiates the government’ preferred course of action.)
That piece is the government of the day. Basically, Macfarlane’s definition treats the court more or less in a vacuum. If it overturns a law, that’s another mark in the “activist” count. If it does so with particular gusto, that gets considered under the “qualitative” metric.
None of this takes in to consideration the substance of the actual laws coming before it, however. Accordingly, it does not consider the extent to which the particular government passing the laws that end up before the court is itself attempting to change or otherwise challenge previously settled (e.g. previously unchallenged, or previously challenged and decided) points of constitutional interpretation. That, in my view, ought to be taken into account when we’re toting up our count of activist decisions.
One might make a comparison with a strand of realist theory in international relations that considers states as either “status quo” or “revisionist.” (The idea is nicely expressed in GIlpin’s classic War and Change in World Politics.) By analogy, a given government might be relatively “status quo,” insofar as it’s happy with existing interpretations of the charter, and therefore see little need to push boundaries in its legislation. Conversely, a government may be deeply and/or broadly dissatisfied with the state of constitutional jurisprudence, and therefore enact a series of laws that rest on, and therefore promote, a new and different set of interpretations. Put differently, to some extent an “activist” court may in fact be quite “status quo,” appearing to be so only due to the presence of a “revisionist” government.
Thus, while not denying Macfarlane’s point that any given court has its own “reading” of the constitution that ought not be treated as absolutely infallible, at the same time, it’s fair to say that a given court that is dealing with a government constantly looking to overturn previously settled constitutional interpretations will seem quite activist (unless it simply rubber stamps the changes). Indeed, such a court may actually be quite conservative—in a small c sense—insofar as it’s attempting to prevent changes to previously widely accepted constitution interpretations. That does not automatically make such a court “right,” but unless our measures of “judicial activism” can capture that nuance, I think we’re missing a crucial aspect of what the concept implies for many people.
Briefly put, I think Macfarlane here treats the issue of judicial activism as if the court were engaged in a series of monologues about the constitution when in reality, it’s in a conversation with the government of the day.