The Threat of Judicial Activism

All over the Western world we are witnessing the rise of judicial activism. That is, we find the active political involvement of judges in contentious social issues. Judges, who are often unelected, but appointed, interpret the law in such a way as to change its original meaning and intent. Since most laws come about by the people themselves (as in referendums) or by democratically elected representatives of the people, it is vital that law not be changed willy nilly by a handful of activist judges.

The problem is, unaccountable judges, instead of legislators, are making and repealing laws, and internationalising law as well. Judges have overstepped their bounds, and their agendas are usually at odds with the majority of those they claim to serve. In fact, the rule of law has been replaced by the rule of judges. This usurpation of the democratic process should be of concern to us all.

Indeed, the rule of law is of utmost importance, and judges are to be neutral in its application, and not seek to push their own political and social agendas. Judges are meant to serve the people and the laws the people helped to make, and not rewrite the law books and promote Political Correctness. But that sadly has been exactly the case for a number of decades now.

Judicial activism can take many forms: it may simply mean that judges are speaking out on controversial ethical and political issues when such pronouncements are not really proper to the role of a judge. Or worse, it can mean using one’s position as a judge to not just apply the law but to radically reinterpret and rewrite the law, to suit trendy political changes or to enforce a stifling Political Correctness.

This has certainly been the case in the US, where in the past half century a whole raft of radical judicial decisions have been made on such controversial issues as abortion, euthanasia and homosexual rights. As Robert Bork has commented, we are beginning to understand “what it means to be ruled by an oligarchy. The most important moral, political, and cultural decisions affecting our lives are steadily being removed from democratic control” and put into the hands of a few radical judges.

Phyllis Schlafly minces no words when she laments “the judicial supremacists who have been systematically dismantling the architecture of our unique, three-branch constitutional republic, and replacing it with an Imperial Judiciary”.

And with judicial decisions attacking the very nature of the moral order – as in its pro-death and anti-family decisions – one has to ask if the courts are still to be regarded as instruments of justice. As Robert George notes, the “worst abuses of human rights have come from the least democratic branch of government – the judiciary”.

That is why, for example, the US presidential election is so very crucial. If the Democrats are elected into the White House this week, things will only get much worse. Several elderly Supreme Court Judges will need to be replaced in the near future, and one can be certain that Obama – if he is elected as President – will appoint radical judges to take their place, and their appointments will be for life. Thus whoever wins power this week in the US will determine the political and legal landscape of America – and the world – for decades to come.

Australian examples

In Australia a number of examples can be produced of judicial activism. One thinks of the head of the High Court, Justice Michael Kirby, who regularly uses his vaunted position to promote homosexuality and other trendy causes. Similarly, former Family Court chief Alastair Nicholson also used his position to champion a whole range of radical causes, causes often inimical to marriage and family. Both have made no apology for this, and instead have often defended their practice.

A full length book could be written on examples of judicial activism in Australia. And one needs to be written. In the meantime, what follows are several examples of recent activism, all of which have been at the expense of the institutions of marriage and family.

• In July 2000 a landmark High Court case in effect struck down state laws on IVF access by saying they violated the federal Sex Discrimination Act (1984) by banning single women and lesbians. In April 2002 a High Court ruling threw out an appeal to that ruling. Thus our un-elected Federal judges struck down the lengthy and careful consultative processes that resulted in the legislation of reproductive technology in several states. And tax-payers will have to help foot the bill for allowing lesbians and singles access to expensive IVF treatment.

• In October 2001 Justice Chisholm of the Family Court ruled that, in effect, two women could marry. A woman who decided to become a man, and renamed herself Kevin, had taken up a relationship with another woman, Jennifer, and began steps to marry in 1999. The judge ruled that “man” could mean a variety of things, and not just be related to the constraints of biology. Psychological and social considerations, in other words, could also be considered when we define (or redefine) ‘male’ and ‘female’. The full bench of the Family Court later upheld that decision.

• Some important cases took place in December of 2003. In that month the Family Court granted a Melbourne gay couple parental responsibility for a baby boy born to a surrogate mother in the US. Justice Sally Brown ruled that it was in the “best interests” of the child to be looked after by the homosexual couple!

• Also in December, The Australian High Court declared that homosexuals who might suffer persecution overseas were entitled to refugee status in this country. In a 4-3 ruling, the Court declared that a gay Bangladeshi couple could win the rights to be refugees. It was a world-first ruling, and will likely have ramifications in other similar cases.

• In April 2004 Chief Justice Alastair Nicholson of the Family Court declared that a 13 year old girl could undergo a sex change procedure because she felt that she was really a boy. Also in April 2004, an Auckland Family Court ruled that a toddler could have three parents: the lesbian mum, her female partner, and the Sydney male sperm donor.

It is not just judges who are doing the damage, but various other legal bodies. One thinks of the various anti-discrimination bodies at state and federal levels, the equal opportunities bodies, and so on.

A glowing example of government sponsored anti-family activity is the conduct of the Equal Opportunity Commission. It regularly goes out of its way to placate the homosexual community, seeking to get homosexuals more active in the EOC processes. Instead of being an impartial observer, it seems the EOC wants to stir up trouble. Diane Sisely of the EOC complained that only 77 out of nearly 3500 discrimination cases taken to the Commission in 2003 were about sexuality. She is unhappy with that, and wants to see more such cases. She said the 77 complaints were “only the tip of the iceberg”. But how does she know that? Never mind that maybe it is just not as huge a problem as the EOC hopes it is. Nonetheless, she has had the EOC set up booths at homosexual festivals, informing people there of their rights, and encouraging them to make complaints if need be.

Numerous other examples could be cited. But it should be clear that various judges, courts, commissions and tribunals are attempting to align themselves with minority groups and/or work against the wishes of many Australians, regardless of whether such actions are in the best interests of the community, or in fact reflect the desires of the majority of its citizens.

What can be done?

The judicial usurpation of politics is a fundamental threat to democracy and the rule of law. It cannot be allowed to continue. When the legislative and executive arms of government are effectively stymied and decimated by a growing, expansionist judiciary, then democracy as a whole comes under very real threat. Thus concerned citizens must become involved, and seek to work for reform.

Mention has already been made of judicial activists in our courts. This needs to be corrected. How this will be done is difficult to say, and it will not take place overnight. One part of the answer is to encourage more pro-family and pro-faith people to become involved in the legal profession and the judiciary.

Of equal concern, and something that would require a lot of effort to overcome, is the way judicial activism is fomented and promoted in our law schools. Almost every university law department today in Australia has become a hotbed of various radicals and activists.

For example, in a recent visit to the Melbourne University Law Department I quickly scanned over those on the Law Faculty. The majority of those lecturers were lesbian activists. Indeed, the realm of legal studies today is the home of Marxists, radical feminists, homosexual activists, and a host of other agitators for social reform.

Today we have feminist legal theory, queer legal theory, Marxist legal theory, deconstructionist legal theory, and so on. Every kind of radicalism around seems to gravitate towards our law schools. And with good reason. Activists know that if they can take over our legal faculties, our courts and our judiciaries, they can impose their radical agenda on the rest of society.

In the 1930s Italian Marxist Antonio Gramsci made the case that radicals should take over the institutions of power and influence: the media, politics, the universities, and the law. He spoke of the “long march through the institutions”. He knew that by so doing an internal revolution could take place. We have seen his strategy almost fully realised now.

In addition to the law schools, there are a host of legal reform bodies, often government supported (and tax-payer funded). They too tend to have a radical and secular agenda they are promoting, be it drug decriminalisation, the legalisation of prostitution, the decriminalisation of abortion, or the promotion of homosexual rights. Indeed, I have documented one such body, the Victorian Law Reform Commission. But there are plenty of other similar bodies in Australia that need to be closely monitored.

All of these groups are promoting agendas hostile to the values of family, faith and life. Their activities need to be exposed, and their public funding needs to be curtailed. In addition, alternative legal bodies need to be set up to reflect mainstream values, and to challenge the judicial activists. All these strategies are long term goals, and require time, effort and commitment from those concerned about the way things are now headed.

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15 Replies to “The Threat of Judicial Activism”

  1. Pastor Dutch Sheets in a recent statement has highlighted the importance of this Presidential election in shaping the Supreme Court for years to come. After explaining how the next President will get to appoint 2-3 justices in the next term, he states:

    Conclusion: our vote this November 4th will be not for a president, not for the economy, not for ending our involvement in Iraq. Our vote will be for what we want America to look like 40 years from now!

    The ramifications of this are staggering! We are no doubt reaping great judgment now in America-diseases, family breakdowns, violence, a death culture, destructive weather, and much more-because of abortion alone—not to mention expelling God and His laws from our schools and government. I don’t know that we can survive another 40 years of this without completely losing our godly heritage and destiny. The economy will recover and the war will end no matter who is elected president-but this is not the case with the Court and the soul of this nation.

    Ewan McDonald.

  2. Not to mention Obama, who has trained himself up as a constitutional lawyer, so that he can dismantle the constitution. In 2001 to his interview with the Chicago Public Radio, which has been covered up by the press, he shows that he thinks the constitution is flawed becauce it should allow the Supreme Court to allow redistribution of wealth:

    He reminds me of the pilots trained up within the U.S. in order to fly into the twin towers.

    Also in his book, he wrote how he’s already used his very short time in politics to vote for the least conservative judges. He used the constitution as his guidleline, rather than the Bible, to appoint more equal representation. Sounds very benign, unless you realise he wants less conservative judges.

    Rebecca Field

  3. Bill

    You forgot to mention the infamous judicial activism of the 1992 Mabo case. The adventurous high court decision spawned a precedent for the writing of new legislature to deal with this venture that invaded political territory.

    Damien Spillane

  4. Damien did well to highlight that very clear example of judicial activism in the Mabo and subsequent Wik cases. In the first (Mabo) the court invented a “native title” right which applied to Crown land only, but the subsequent Wik case extended that title to leasehold (such as pastoral and mining leases) also. I think in more recent times native title has been extended to include much of the coastal waters around Northern Australia. Only freehold property is considered exempt from native title claims.

    In the process of inventing native title, the court also misrepresented the legal doctrine of terra nullius which historically simply gave European colonising powers the legal force to the claiming and settlement of lands where no recognisable system of laws or ownership of property was held to exist. The court however reinterpreted terra nullius to mean that the land was considered uninhabited, and therefore because Australia was clearly inhabited by the aboriginal people at the time of European settlement, the court could then somewhat disingenuously claim that terra nullius was a “legal fiction”.

    Ewan McDonald.

  5. I agree with the sentiment here about judicial activism. Generally it is a dangerous, due to the fact that judges are unelected (although having democratically elected persons passing laws hasn’t seem to stop radical legislation getting through, re: abortion decriminalisation; when the intelligentsia of a country declines the rot will creep in no matter what protections are put up against it).

    However, addressing the comments above, I do think a willingness to heed broader principles of justice has in certain areas helped the development of law, especially in the area of contracts, where a blackletter interpretation of someone’s signature on a piece of paper can occasionally result in grave injustice.

    There is a particularly difficult balance to be kept, and I’m sure it becomes more difficult to keep it when faced with two irreconcilable ‘system[s] of law’ and of land ‘ownership’, as the court in Mabo was. Sometimes a decision places before you two evils, of which you must choose the lesser.

    Natasha Sim

  6. Natasha,

    The Mabo case has been hijacked. When one examines the background of Mr Eddie Mabo one learns that he was in fact Melanesian not Aboriginal. The Torres Strait Islands are populated entirely by Melanesians. In their culture they build robust and enduring houses in a community (village) in which they make gardens, build pens for domesticed animals, eg pigs and have a system of land ownership with the title passing from one generation to the next in a time honoured tradition. In some cases, in PNG for example, it is the women who hold the title.

    The Aboriginal culture is in stark contrast to the Melanesians. The Aboriginals did not own the land; the land OWNED them and quite often family groups of Aboriginals would wander hundreds of miles from their usual haunts depending on availability of food and to attend traditional gatherings such as the Bunya festival held every three years on Bunya Mountain in SE Qld.

    Mr Mabo was indeed entitled to customary ownership of land; the Aboriginals are not!

    John FG McMahon, Kolonga, Qld

  7. Natasha, the point about the judicial activism that led to the creation of native title is that it was properly the role of the legislature not the courts to determine this.

    Ewan McDonald.

  8. John FG McMahon is right. I had forgotten that detail. The Mabo case applied specifically to a land claim on one of the Torres Strait Islands where there arguably was a strong claim to prior title. That decision in favour of Eddie Mabo was then unreasonably extended to apply also to the mainland of Australia, which as John points out is a completely different situation. The whole process was judicial activism from start to finish. The result is we now have a form of title (native title) which is racist (only applies to descendants of aboriginal Australians), and which caries pagan religious overtones. It gives tacit state approval to animism through a claimed “spiritual connection with the land”.

    Ewan McDonald.

  9. Hello John,

    Sorry for the confusion & thanks for the clarification. Yes, Mabo is factually different from other cases of Aboriginal land title. I was referring to the responses above re: native title in general, sorry for being confusing by mentioning Mabo!

    My point was that the legal concept of land ownership is always going to be couched in Western terms (eg. working the land, being settled rather than nomadic). It is fallout from the time of Babel that Western law/language is at a loss as to how to deal with Aboriginal connections to the land, and yet to not deal with it would constitute oversight.


    Agreed, but I think it’s also important to recognise that the legalism that stems from that idea may also cause serious injustice to disputants. Sometimes strictly interpreting the law will render to the litigant (after a costly and protracted process) an unjust outcome, though it also maintains the integrity of the system of laws.

    Natasha Sim

  10. Ewan,

    Having lived in North Queensland, Papua New Guinea or the Solomon Islands for many years I am very familiar with both Melanesian and Aboriginal cultures.

    There is no doubt of the entitlement of the Melanesian Australians to their traditional lands same as we are entitled to freehold ownership of our own properties.

    Equally adamantly the Aboriginals had no illusions that the Great Spirit of the Land owned them and their individual spirits. It would have been “blasphemous” for any Aboriginal group or individual to claim ownership of any land.

    Thus the Aboriginal claims of recent times are politically not culturally driven.

    John FG McMahon, Kolonga, Qld

  11. Dear Bill,
    Congratulations for a very important piece! Great leadership! Especially praiseworthy is your addressing corrective actions. Also required is that defenders of democracy must, at parliamentary elections, make an issue of the Parties’ policies and performances in judicial appointments. Until we like-minded democrats seek cohesive and cogent electoral effectiveness, we can’t progress this issue. It is no comfort that judicial activism in Australia long pre-dates the libertarian assault on the citizenry. Some judges want to rule, instead of honoring their prescribed duty. It’s really a power struggle against the sovereignty of the citizens. Well done!
    Gerard Flood

  12. Ewan and John

    That is great stuff on the native title issue.

    Thanks for the education!

    Damien Spillane

  13. Hi Bill
    I have been doing some research into Judicial recusal and Judicial activism and I came across your site.

    I am in the middle of writing to Rt Hon Ken Clarke MP who is Lord Chancellor and Minister for Justice arguing that our Judiciary requires more democratic accountability and their beliefs should be included in the guidelines for recusal. I have some support from Lord Carey.

    Dr John Studley

  14. Your personal views penetrate this article, isnt this what activism is? I would not quote this article it seems to be christian bias (anti ‘choice,’ anti gay) etc.
    Hollie Broekman

  15. Thanks Hollie

    But perhaps you need to read the article again. Offering personal opinion (just as you have done in your comment) is not at all identical to judicial activism. They are worlds apart. Judicial activism, as I said, involves judges effectively creating laws and pushing personal agendas instead of merely applying already existing law. That is not how democracies function, and it leads to the death of the rule of law, and to the tyranny of the judiciary over the legislative and executive branches of government.

    And of course one need not be a Christian to be pro-life or pro-family. And please tell us what your particular bias is.

    Bill Muehlenberg, CultureWatch

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