Judges Making Laws

Judicial activism. Years back, there was a phase when it was in vogue in India.

“Judicial activism is the exercise of the power of judicial review to set aside government acts. Generally, the phrase is used to identify undesirable exercises of that power, but there is little agreement on which instances are undesirable.”

 

This is a problematic topic. As our Civics course taught us, it is the legislature’s job to draw up laws, not the judiciary’s. An obvious exception can/should be made if a law violates the constitution.

 

But what about the scenario where the legislature can’t/won’t frame a law? Because the ruling party doesn’t have the numbers? Or because the issue at hand is too divisive and no party wants to risk a backlash?

 

In the US, one such divisive issue is abortion. The constitution doesn’t say anything about the topic. And politicians won’t frame a law about it (for or against) since it has always been a deeply polarizing topic (not just in recent times). And so it came to be that the courts had ruled in 1973 that abortion was legal. Until it got overturned in 2023, again by the courts.

 

Rahul Matthan looked at a different aspect. On the one hand, judicial systems like to follow precedent – follow what a previous judgment had to say on the same topic. Why? It ensures consistency. You don’t want a system where people feel the outcome depends on the tendencies of the judge!

“As a result, past decisions are rarely overturned; at best, they are just distinguished from.”

(Note that following precedent is only for topics involving interpretation. If the verdict was wrong; or violated a law; or if the evidence was illegally procured, then of course, the verdict can and does get overturned often).

 

Yet, he says, abortion was overturned. The court’s reason for taking this rare step of overturning an earlier verdict?

“(Always following precedent would) compel courts to abide by unworkable or badly reasoned judgements—else bad decisions would live on forever.”

Thus, they explained the overturning as a sign of “restrain(ing) judicial hubris” - prior verdicts need not be perfect or beyond questioning.

 

As we have seen in great detail from Roman times, governance is a very complex and messy topic. We need rules, and yet there are always scenarios where the rule doesn’t make sense. Elected politicians cannot make deeply unpopular decisions, even on those rare occasions where they want to do the right thing. Cursing and criticizing the system is the easy way. But it doesn’t achieve anything.