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?

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.

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 In 1997, Miller interviewed people in Canada, including