Review of ‘The Campaign Against The Courts: A History Of The Judicial Activism Debate’ (Tanya Josev, Federation Press, 2017, ISBN 9781760021436)

Courts ... are the distinctive institutional locus of lawyers’ activity, their decisions the distinctive core of lawyers’ knowledge, and their perceived independence is the main source of whatever perceptions there may be of the law’s authority and autonomy.[1]

Tanya Josev’s monograph, The Campaign against the Courts, is a rich historical examination of the social meaning of the term ‘judicial activism’ within the United States and Australia. It is a new comparative study of the many actors and contingencies that shaped public perceptions of the constitutional role of courts in these democracies over the last century. And it is a timely reminder of the symbolic and political significance of courts to a nation. In earlier ages governments and rulers used the composition, practices and even costume of the judiciary to signal a country’s growing independence, strength and breaks with religious ties.[2] In contrast Josev documents how politicians and the media invoked ‘judicial activism’ as a derogatory label in their conservative campaigns. Rather than lauding the judiciary as bastions of the rule of law, these critiques condemned ‘activist’ judges for their alleged elitism and for threatening the democratic fabric of a nation. In essence Josev’s work is a fascinating comparative account of the judiciary’s complex role in the culture and history wars.