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Government professor Mark Miller explores what some people have interpreted as an increase judicial activism in Canadian and European courts. His work with students includes mentoring Clark's Mock Trial team, and helping students like Dan Bresette pursue their own research projects. |
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Courting controversy: the evolving activism of high courts
Professor Mark Miller's research
Chads and recounts from the last presidential election aside, the U.S. Supreme Court isn't the only high court flexing its muscles.
For Professor Mark Miller and advisee Dan Bresette '01, following the activities of courts and congresses is a favorite pastime.
While Bresette researches Congress's role in
foreign policy during the Clinton years, Miller has been attending
to the role of high courts in making policy.
We're all familiar with the storm of controversy that centered on the
role of the U.S. Supreme Court during
the recent U.S. presidential election. Professor Miller has discovered that the U.S.
Supreme Court is not alone among high courts in its increasing tendency to make policy
rather than just apply law. His examination of the Canadian Supreme Court and the European
Union's Court of Justice shows they are likewise flexing their muscles. Miller's findings
are revealed in an article published in 1999 in the Journal of International Law and
Policy (see In Depth).
- What is judicial activism?
- Conflicting authorities
- The European Court of Justice
- The Canadian Supreme Court
- Sources of
information for the study
What is judicial activism?
Judicial activism is the willingness of a court to create policy by interpreting
laws broadly rather than strictly. For example, the "right to privacy," now
considered now a constitutional right of U.S. citizens, is not stated explicitly in the
Constitution. Rather, it is a court-created interpretation of the 1st, 4th, and 5th
amendments to the Constitution. Courts then decide to which cases the "right to
privacy" principle is relevant. In a situation such a woman's right to choose
abortion, the interpretation of the courts can create great controversy. Often a court can
interpret a law so broadly that the scope of that law is radically changed.
Conflicting authorities
By interpreting laws broadly, an activist court can infringe on the authority of
the legislative branches of government to make law. Court activism can result in two
conflicts.
- First, some people view court activism as a threat to democracy, a system based on the
right of the people or their representatives (not the courts) to create laws.
- Second, when the activism is present in a federal Supreme Court which has final
authority over lower court rulings, the rights of the federal government can be promoted
at the expense of the rights of states or provinces. (Recall that in the U.S., a
disagreement about to the rights of states vs. the rights of the federal government
resulted in a devastating civil war.)
The European Union's Court of Justice
The European Union is an association of 15 European countries (figure 1).The
original job of the European Court of Justice was to "interpret and apply the
treaties which form the foundation of the European Union." Cases for the Court's
review can be introduced from member countries, from the courts of member countries, or
from other EU organizations.
The goal of the now openly activist European Court is to promote the integration of
member countries into a European Union viewed as increasingly federalist. The Court's
decisions are, in effect, creating a European Union constitution whose
principles in an increasing number of areas take precedence over the laws of individual
member nations.
The European Court of Justice was set up in a way that facilitates a federalist bias.
Although each member country chooses one of the 15 judges, nominees are usually persons
supportive of the EU and each nominee must be approved by all other member countries. In
addition, each judge is assisted by advocates whose job is to represent the interests of
the European Union in a particular case.
Although the decisions of the Court are increasingly influencing national laws and
policies, there seems to be little resistance to this trend by the member countries
themselves. One reason might be that the courts of the member countries are themselves
becoming increasingly active, thus creating a climate accepting of courts as policymakers.
In addition, when ECJ judges return to their home countries after the expiration of their
terms, they reintegrate into the government of the home country and promote locally a
pro-EU position.
The Canadian Court System
Canadian judges traditionally have prided themselves on being independent and
apolitical--that is, their appointments are based on merit rather than affiliation with
the political party currently in power. Judges have traditionally followed a policy of
restraint rather than activism, choosing to apply law and interpret laws conservatively
rather than liberally.
Beneath the Canadian Supreme Court are three levels of provincial courts. (Canada is
divided into 10 provinces and 3 territories.) However, most judges are appointed by federal
officials. Only the lowest level trial court judges are appointed by provincial officials.
Supreme Court decisions must be adhered to by the provincial courts and thus may
affect provincial legislation. Despite the independence of judges, whether real or
perceived, the structure of the court system is defined in such a way as to give
federalism, in the form of the Supreme Court, an edge.
After the 1982 passage of the Canadian Charter of Rights and Freedoms, Canadian courts,
especially the Supreme Court, became much more activist in a need to interpret the
specifics of the Charter. Today, although lower courts are still relatively apolitical,
the Supreme Court is now considered a "policy making institution," a role
which promotes federalism at the expense of provincial authority.
Information sources
To compare the evolution of the European Union's Court of Justice (ECJ) and the
Canadian Supreme Court (CSC), Miller conducted a series of interviews. During a 1996
summer of research at Clark's Center in Luxembourg, also the home of the ECJ, Miller and
his students visited and spoke with people at
- the European Court of Justice
- the German Constitutional Court at Karlsruhe, Germany
- the European Parliament in Strasbourg, France
- the national courts of Luxembourg.
In 1997, Miller interviewed people in Canada, including
- judges and staff at various levels of Canadian courts
- Canadian academics specializing in the study of courts
- Canadian lawyers in private practice or who work for the Law Society of Upper Canada
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Additional Resources
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Professor Mark Miller
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 Countries under the
jurisdiction of the European Court of Justice. Enlarge. |
Provinces and Territories of Canada. Enlarge.
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European Court of Justice. Enlarge.
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Canadian Supreme Court building in Ottawa, Ontario, Canada. Enlarge. Photo
© Supreme Court of Canada.
Photographer: Philippe Landreville, Photograph Inc.
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