With Apologies To Judicial Supremacy
On the 17th of April, 1905, the Supreme Court of the United States decided Lochner v. New York, a case concerning the regulation of the minimum number of working hours for bakers by the state of New York. At this point in time, the working hours that some bakers were being subjected to involved twenty-four hour shifts. The state’s attempt to prevent exploitation of workers by their employers was struck down by the Supreme Court as a violation of the Fourteenth Amendment. The Supreme Court somehow found a ‘general right to make a contract […] is part of the liberty of the individual protected by the Fourteenth Amendment.’ In sum, the New York law violated the ‘freedom of contract’, despite the fact that such a right is never mentioned in the Fourteenth Amendment.
This precedent would be used by an activist Supreme Court to strike down laws that were not only needed to counter the Great Depression, but were also laws that enjoyed vast support among the people of the United States and their elected representatives.
Today, Lochner is universally panned as a judicial decision where an activist judiciary fabricated a right which allowed it to interfere in economic regulation. The Lochner era also shows how the subjective views of judges, if unconstrained by an appreciation of constitutional text and the separation of powers, can have enormous repercussions on a nation. As Ian Millhiser writes in his book ‘Injustices,’ the majority in Lochner viewed democracy as a threat to liberty, resulting in the justices giving little regard to the fact that the nation, through the democratic process, constantly tried to counteract the decision given in Lochner. The result: a paradoxical situation where the unelected had more say in economic policy than the elected.
This case is but one example of the reasons to be wary of judicial activism. It also portrays the problematic nature of allowing ourselves to believe that judicial supremacy –not democracy – is the ultimate solution to all our problems. This is a point very relevant to Pakistan, where the Chaudhry Court unleashed a string of opinions ripping the doctrine of the separation of powers to shreds by an excessive interference in executive policy and an adherence to populism. Examples of this are abundant from the Chaudhry Court years: the Memo Commission (a matter of pure foreign policy), asking an insolvent government to slash flour prices, blockading attempts to solve the country’s energy shortage, and the list goes on.
But trends like these tend to snowball. Justice Chaudhry did not take issue with making judgments based on his own moral convictions. Take the case against Atiqa Odho: allegedly found in possession of alcohol. The Supreme Court took suo motu notice, which begged the question: how was this a matter of national importance and fundamental rights?
The fact that these issues are missed by people in Pakistan is brought to light by the support shown to the tenure of recent Chief Justice Khawaja. If anything should worry us, it was his support for striking down the twenty-first amendment to Pakistan’s constitution by relying on the basic structure doctrine. Article 239 (5) of the Constitution of Pakistan states: ‘No amendment of the Constitution shall be called in question in any court on any ground whatsoever.’ The fact that anyone would think, despite this provision, that there is still an ability to strike down a constitutional amendment shows a moral crusade to shape the Constitution according to ones own subjective views – something we should all be wary of.
Not least, it shows an unelected judge trying to impose his will on a democratically enacted constitutional amendment. Whether we hate or love the twenty-first amendment has no bearing on whether it is ‘legally’ valid. This is a fact that judicial activism fails to appreciate.
Finally, both Justice Chaudhry and Justice Khawaja failed to understand that change in a democratic system comes gradually and through the process of the vote. Although judicial decisions may be a welcome catalyst for this, real change can only come through the democratic process. Take the seminal case of Brown v. Board of Education which ended racial segregation in schools in the U.S. Although, an important catalyst, true desegregation would take an excruciatingly long time to manifest itself. Ten years after Brown, Justice Black would state, ‘There has been entirely too much deliberation and not enough speed.’ Similar facts should have been weighed by Chief Justice Khawaja before ruling that the entire country needed to return to its roots and adopt Urdu.
The solution to all of this is, most importantly, a change in our discourse. There is not enough debate on questioning excessive judicial interference in areas best left to the legislature or the executive. The debate requires us to rethink the role the judiciary is supposed to play under our Constitution: an appreciation that it is but one organ in the government which must realize that it is not above the executive or the legislature, as well as an examination of the Constitutional text and adherence to what it says rather than what judges might want it to say. Some sort of legal test must be established by the judiciary itself when it is questioning affairs of pure policy.
The judiciary must protect the fundamental rights enshrined in the Constitution, but where these rights are not involved, and the matter is one of policy, the Court would do well by adopting the ‘rational basis test’ used in the U.S. The test would allow the judiciary to look at issues relating to policy and ask whether the government’s actions are ‘rationally related’ to a legitimate government interest. Through the use of judicial restraint in separation of powers issues – an analysis of the constitutional text and its historical context – judges can be constrained from imposing their own subjective views on what the Constitution means.
It is not proposed that the judiciary swing to the other side of the jurisprudential spectrum and turn meek. There is enough extremism in this country, with its oscillation between extremes rather than a synthesis of the ideas in between, to show us why such views are a bad idea. However, we need a balance, we do not wish to exchange democratic self-governance with judicial supremacy.
Lest we forget the greatest contribution that judicial activism has given to this nation: the doctrine of necessity.
The views expressed in this article are those of the author and do not necessarily represent the views of any organization with which he might be associated.