Constitutional courts and judicial activism
The debate on judicial activism of courts in general and of constitutional courts is a recurring one in constitutional law scholarship. Judicial activism has been understood in different ways, depending on the type of judicial system and on the ‘model’ of constitutional review applied in various countries.
The concept is related to the idea of the constitution as a ‘living document’,7 which has to evolve permanently, in line with societal changes and needs. This adaptation of the relatively stable normative text to a changing society can be achieved through various means, among which is judicial activism. Constitutional adjudication can thus become a vector of change through judicial activism. But how can judicial activism be defined? In a more general wording, expressed in American scholarship, it is ‘a practice of the federal courts of imposing their moral, social, political and economic views on the country’. The explanation for the need of such imposition may be, in the same author’s view, that ‘the kind of Government envisaged by the Constitution is incapable of coping with contemporary conditions’.9 Although the courts may not always be very well prepared to fill that void, as ‘they are trained in the law, not in mental health, penology, race relations, school and business administration’, the recourse to judicial activism is inevitable, because even the political powers demand such action.In a more nuanced opinion, there is a difference between ‘active courts’ versus ‘passive courts’, and ‘activist courts’ versus ‘restrained courts’. Thus, ‘an active court can be defined as one that is more likely to strike down or otherwise modify the actions taken by other branches of government. A passive court is one which routinely defers to legislative and executive judgment.’1 However, in the author’s view, an active court is not always an activist court.
A court becomes activist only when it, ‘without constitutional authorization, imposes its own views’. Therefore, the activist nature of the court’s activity depends on the nature and extent of the powers that it exercises: if they are authorised and/or required by the constitution, then the court cannot be deemed as ‘activist’, as all it does is remain within the limits created by the fundamental law.7 Thurgood Marshall, The Constitution: A Living Document (1987). Text available at http://thurgoodmarshall.com/ the-bicentennial-speech/.
8 Iredell Jenkins, Judicial Activism and Constitutional Government, in (1984) 29 (1) American Journal of Jurisprudence, p. 173.
9 Ibidem, p. 185.
10 Jorge M.Farinacci-Fernos, Constitutionally Required Judicial Activism. Re-examining the Role of Courts in Modern Constitutional Adjudication, in (2018) 28 Kansas Journal of Law and Public Policy, p. 38.
11 Ibidem, p. 70.
A broader definition of judicial activism is proposed by Brian Galligan: ‘control or influence by the judiciary over political or administrative institutions, processes and outcomes’.1 I partially agree with Farinacci-Fernos that this definition is more accurate when it applies to control or influence exercised by courts (including constitutional courts) outside the scope of their constitutionally limited powers. The fact that a constitutional court strikes down legislation by exercising its constitutional powers of review is not the same as interfering with the state powers while exceeding its constitutional powers of review of legislation or control of the authorities. This distinction is especially true when constitutional courts become involved in politics. Judicial activism was also seen as ‘the frequency with which courts rule that policies passed by government institutions are unconstitutional’.
What are the contexts in which a contemporary constitutional court can become activist and what are the benefits, if any, of this activism? Are there more types of judicial activism or does it just depend on the context? For space reasons, I will not develop the answers to all these questions, but it is worth mentioning that, if improperly used, judicial activism of constitutional courts can become a ‘double-edged sword’.
One legitimate context of judicial activism would be a vague constitutional text which needs either an update or a more precise interpretation from the constitutional court. In this case, the court acts as an interpreter but the thin line between a negative and a positive legislator can easily be broken.
Another context of judicial activism is the willingness of the RCC to protect its own powers or even to exceed these powers, in order to fulfil a certain goal. Usually, this goal is a political one and sometimes it is determined by the political influence of the governmental majority within the court. This type of activism could be used under the guise of protection of constitutional values, in order to interfere with the normal functioning of state powers - such as the executive or even the judiciary. ‘Judicial populism’,[388] [389] [390] understood as a ‘case-law that would enhance popular sovereignty, prioritise constitutional identity, restrict pluralism, diminish checks and balances, relativize fundamental rights or simply seek to give effect to public perceptions or endorse populist views of the government’, is a derivative of this type of judicial activism. S. Tanasescu further explains this relationship:
in some instances judicial activism of constitutional courts may prove instrumental for popular constitutionalism. If judicial activism is not merely a certain propensity of constitutional judges to invalidate decisions taken by other legitimate actors in order to enforce their own vision of the Constitution, but it also encompasses an overlap of that vision with the vision on the
Constitution held by the majority of the population, the distance between judicial activism and judicial populism becomes very thin, particularly when the balance is tilted in the direction of majoritarian views.[391] [392]
The latter case makes judicial activism closer to ‘political servility’ of the constitutional court, which can become very dangerous for the rule of law.
In non-consolidated democracies, where the political power can easily become instrumentalised in order to serve personal or group interests of certain politicians or political parties, judicial activism can become a ‘constitutional tsunami’, when the constitutional court exceeds its powers and becomes a positive legislator and/ or interferes with the judicial power or, more generally, with the structure and functioning of the very constitutional system. In other cases, post-communist constitutional courts are less activist in relation to the political powers and more activist as players in interpreting the constitution in respect of EU membership. Other courts channel their activism towards human rights protection.[393]
Many of these abovementioned cases or contexts of judicial activism can be detected in the case law of the RCC in recent years. Some of them will be illustrated in the following sections with relevant decisions.
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