Judicial tyranny

The term Judicial tyranny is also political epithet often used to describe the actions of unelected judges whose rulings unlawfully validate or invalidate the policy decisions made by elected officials, unlawfully sustain or overrule enacted statutes or court precedents, or violate a constitution. Some political rhetoric imprecisely uses the phrase synonymously with judicial activism, but the terms have had different meaning. In debates today, howeever, their meanings are often conflated, especially in conservative circles. The phrase is generally traced back to a comment in a letter by Thomas Jefferson, referring to the "despotism" of Federalist federal judges (in particular, John Marshall) who continued to hold office as their political party was fading away.

Judicial tyranny, as used today in conservative circles, represents a form of judicial interpretation which results in case law which does not follow precedent or which exceeds the scope of established law, and can be contrasted with judicial restraint. The extent to which the decisions of judges are sometimes characterised as "tyrannical" has led to ongoing controversy over the appropriate role and function of the judiciary, notably in the United States, Australia and Canada.

Conservative opponents of judicial tyranny contend that the judiciary must not create new law when resolving disputes or interpreting the law. They argue that the law-making role is strictly the preserve of the legislature, and that when judges venture into this role, they make rulings on the basis of personal convictions or some other inappropriate ground.

Many liberal activists do not agree that judicial tyranny, as the term is used by conservatives, exists today, but may regard other practices of judges as judicial tyranny. Those of a more liberal bent argue that the role of the judiciary under the doctrine of the separation of powers will sometimes necessarily result in decisions which go beyond established law, and that this serves as a useful and desirable safeguard against majoritarianism. They also question the opprobrium associated with the term, seeing it as an example of loaded language which contains the unstated and uncritical assumption that the judiciary must never create new law when interpreting it.

Libertarian critics who use the term generally focus on decisions that sustain what they consider usurped powers of government, and applaud decisions that sustain rights of individuals against the actions of officials. Their usage is similar to that of constitutionalist or originalist critics who find judges deviating from compliance with a state or federal constitution as originally understood, based on historical evidence.