If judiciary crosses limits, there will be reactions which may damage judiciary, its independence, respect in society.
The writer, a judge of the Supreme Court of India from 2006 to 2011, is chairman of the Press Council of India
I have expressed my views about the Pakistan Supreme Court and its need to maintain judicial self restraint in articles published in this newspaper and elsewhere. However, in view of the turmoil currently prevailing in Pakistan, a clear elaborate enunciation of the philosophy of judicial restraint is called for.
In a recent statement, the Chief Justice has said that it is the Constitution, not Parliament, which is supreme in the country. There is no controversy about this legal position, and indeed that is the settled law since the historical decision of the US Supreme Court in Marbury vs. Madison (1803).
The grave problem, however, which courts are often faced with is this: on the one hand, there is no doubt that the Constitution is the supreme law of the land and prevails over statutes and executive decisions, and it is for the Courts to interpret the Constitution. On the other hand, in the garb of interpretation, the Court must not seek an unnecessary confrontation with the legislature, particularly since the legislature consists of representatives democratically elected by the people.
The solution to the problem was provided in the classical essay written in 1893 (and published in the Harvard Law Review the same year) by James Bradley Thayer, then professor of law of Harvard University, entitled “The Origin and Scope of the American Doctrine of Constitutional Law”. This essay elaborately discusses the doctrine of judicial restraint and explains why courts should follow it.
Justice Oliver Wendell Holmes, Louis Brandeis and Felix Frankfurter of the US Supreme Court were followers of Professor Thayer’s philosophy of judicial restraint. Justice Frankfurter referred to Thayer as “the great master of Constitutional Law” and in a lecture at Harvard Law School said:
“If I were to name one piece of writing on American Constitutional Law, I would pick Thayer’s once famous essay, because it is a great guide for Judges, and therefore the great guide for understanding by non-judges of what the place of the judiciary is in relation to Constitutional questions.”
The Court certainly has power to decide Constitutional issues. However, as pointed out by Justice Frankfurter in West Virginia State Board of Education vs. Barnette 319 US 624 (1943), since this great power can prevent the full play of the democratic process, it is vital that it should be exercised with rigorous self-restraint.
The philosophy behind the doctrine of judicial restraint is that there is broad separation of powers under the Constitution and the three organs of the State, the legislature, the executive, and the judiciary must respect each other and must not ordinarily encroach into each other’s domain, otherwise the system cannot function properly. Also, the judiciary must realise that the legislature is a democratically-elected body which expresses the will of the people (however imperfectly) and in a democracy this will is not to be lightly frustrated or thwarted.
Apart from the above, as pointed out by Professor Thayer, judicial overactivism deprives the people of “the political experience and the moral education and stimulus that comes from fighting the problem in the ordinary way, and correcting their own errors”.
In Asif Hameed vs. The State of Jammu & Kashmir, AIR 1989 SC 1899 (paragraphs 17 to 19 ) the Indian Supreme Court observed: “Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity, the Constitution makers have meticulously defined the functions of various organs of the State. The legislature, executive, and judiciary have to function within their own spheres demarcated in the Constitution. No organ can usurp the function of another. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self-imposed discipline of judicial restraint.”
As observed by Justice Frankfurter in Trop vs. Dulles (1958): “All power is, in Madison’s phrase, of an encroaching nature. Judicial power is not immune against this human weakness. It must be on guard on going beyond its proper bounds, not the less so since the only restraint upon it is self-restraint. The Court must observe a fastidious regard about limitation of its own power, and this precludes the Court’s giving effect to its own notions of what is wise and politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorised the judges to sit in judgment on the wisdom of what the legislative and executive branch may do.”
As observed by Justice AS Anand, former chief justice of India: “Courts have to function within the established parameters and Constitutional bounds. With a view to see that judicial activism does not become judicial adventurism, the courts must act with caution and proper restraint. They must remember that judicial activism is not an unguided missile. Failure to bear this in mind would lead to chaos. Public adulation must not sway the judges. They must remember that they cannot run the government.”
Judicial restraint is particularly important for the Supreme Court for two reasons: 1) Of the three organs of the State, only one of them, the judiciary, is empowered to declare the limits of jurisdiction of all the three organs. This great power must, therefore, be exercised by the judiciary with the utmost humility and self restraint and 2) The errors of the lower courts can be corrected by the higher courts, but there is none above the Supreme Court to correct its errors.
Some people justify judicial activism by saying that the legislature and executive are not properly performing their functions. The reply to this argument is that the same charge is often levelled against the judiciary. Should the legislature or executive then take over judicial functions? If the legislature or executive are not properly performing their functions, it is for the people to correct them by exercising their franchise properly, or by peaceful and lawful public meetings and demonstrations, and/or by public criticism through the media and by other lawful means. The remedy is not in the judiciary taking over these functions, because that would not only be against the separation of powers in the Constitution, but also because the judiciary has neither the expertise nor the resources to perform these functions.
The moral of this story is that if the judiciary does not maintain restraint and crosses its limits, there will be a reaction which may do great damage to the judiciary, its independence, and its respect in society. It is not my opinion that a judge should never be an activist. Sometimes, judicial activism is a good and useful thing, such as in the school segregation and human rights cases decided by the US Supreme Court, e.g. Brown vs. Board of Education, Miranda vs. Arizona, Roe vs. Wade, etc or the decisions of the Indian Supreme Court expanding the scope of Articles 14 and 19 of the Indian Constitution. Such activism should, however, be done only in exceptional and rare cases.
Published in The Express Tribune, July 12th, 2012.
Franklin D. Roosevelt, in his first term, went to war with the Supreme Court. Time and again, the Court’s conservative majority declared that measures that the President regarded as vital in order to address the extraordinary perils of the Great Depression were unconstitutional. Emboldened by a landslide reëlection in 1936, he struck back at the “nine old men” by proposing a change in the structure of the Court: henceforth, the President would name an additional Justice for each one over the age of seventy. The justification was that the new appointees would assist their elderly colleagues with their work, but, as everyone knew, the real motive was to put enough F.D.R. appointees on the Court to allow the New Deal to proceed.
History’s judgment of the court-packing plot has generally been harsh, but Jeff Shesol’s new book on the subject, “Supreme Power,” while acknowledging the conventional view that ego and emotion drove Roosevelt to act, notes that the plan “was also the product of reason.” As late as 1937, the Depression still presented a risk of social and industrial collapse, “the very conditions that in other nations had hastened the slide into tyranny,” Shesol writes. Court-mandated inaction, Roosevelt believed, was therefore not an option. He considered a proposal to amend the Constitution and add explicit authority for government intervention in the economy, but he chose the more moderate plan of altering the makeup of the Court because he “was consistent in his belief that the real problem was not one of law per se, but of law being twisted by ideologically driven, outcome-oriented judges.”
The forty-fourth President is now feeling the pain of the thirty-second. Barack Obama, like Franklin Roosevelt, took office at a time of economic crisis, pushed through a progressive legislative response, and now awaits a verdict on that response from a Supreme Court that is dominated by his political adversaries. Last week, he nominated Elena Kagan, the Solicitor General, a woman of impressive qualifications, if somewhat opaque views, as his second appointee to the Court. But Kagan would replace John Paul Stevens, a like-minded member of the liberal minority of four, so her arrival would extend, not change, the status quo.
Chief Justice John G. Roberts, Jr., and his conservative fellow-Justices, like their ideological kinsmen in the nineteen-thirties, are engaging in what’s known as judicial activism. A few weeks ago, on Air Force One, Obama, a former law professor, gave a useful definition of the term, saying that “an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically.” This is, indeed, what the Roberts Court is doing. Local elected officials in Seattle and Louisville created complex and nuanced strategies to achieve racial diversity in their schools; in 2007, in a decision written by Roberts, the Court overturned the plans. The elected city council of the District of Columbia passed a strict gun-control law; in 2008, in a decision by Antonin Scalia, the Court vetoed it. Most notoriously, Congress passed the McCain-Feingold campaign-finance bill, which President Bush signed into law; earlier this year, in a decision by Anthony M. Kennedy, the Court eviscerated that legislation and decreed that corporations have the right to spend unlimited funds to elect the candidates of their choice. In that case, known as Citizens United, the majority also reversed two recent Court decisions. Roberts and his allies, like the conservatives of seventy years ago, profess to believe in judicial restraint (the opposite of activism) and respect for precedent, but their actions belie their supposed values.
The Obama Administration’s initiatives face a number of Court tests. Next year, for example, the Court may take up the case of whether the Federal Communications Commission has the authority to mandate net neutrality. (A lower court has said no.) The securities industry’s trade group has hired a leading Supreme Court litigator to find ways to test parts of the financial-reform legislation, even before it has passed into law. The biggest case pending is that of the health-care-reform law. Attacking the constitutionality of the law has already become a conservative crusade; thirteen Republican state attorneys general are planning a lawsuit that claims that the legislation falls outside the constitutional power of the federal government to regulate interstate commerce. Not coincidentally, this was the theory employed by the Court in the thirties to undermine the New Deal.
Under current doctrine, the challenges to health-care reform seem dubious in the extreme, because the federal government, through programs like Medicare and Medicaid, has been intimately involved with health care for decades. But, given how many areas of the law are changing under the Roberts Court, the legislation may be vulnerable. It certainly will be if Clarence Thomas has his way. For nearly two decades, he has been waging constitutional war on the welfare state. Back in 1995, he wrote, “The Founding Fathers confirmed that most areas of life (even many matters that would have substantial effects on commerce) would remain outside the reach of the Federal Government.” Thomas’s approach is a legal recipe for a wholesale elimination of much of the United States government. The health-care litigation will show how many of his colleagues want to do just that.
Now it’s the liberals who are touting judicial restraint, but of course there are also plenty of Court precedents that they would be happy, as Stevens wrote in another context, to see tossed “out the window of a fast-moving caboose.” The civil-rights revolution of the Warren and Burger Courts, in the nineteen-sixties and seventies, was built on overruling the expressed will of the people, as when the Court rejected laws that prohibited racial intermarriage, or laws that banned abortion. Today, liberals applaud when the Supreme Court strikes down federal legislation restricting the rights of detainees at Guantánamo, or a state’s limitations on gay rights, and if the day comes when the Court jettisons Citizens United liberals will be too busy celebrating to remember the primacy of stare decisis. As is so often the case, in courtrooms and elsewhere, the battle between Obama and the Roberts Court is as much about power as it is about principle; neither side is as concerned with abstract concepts like activism and restraint as it is with winning.
Roosevelt lost the court-packing battle, but he won the legal war over the New Deal. By the end of his long tenure in the White House, he had made eight Supreme Court appointments, and that is what guaranteed that the federal government was able to address the economic crisis. For Obama, then, the lesson of F.D.R. is simple. Kagan, plus Sonia Sotomayor, makes two appointments. The President, to secure his legacy, may need a few more.