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Judges Making Law: How Activism Corrupted the US Courts
By Anthony Ma - 2026 CPAC Global Explorer
Australia, like the United States, has three separate but co-equal branches of government; the legislature, executive and judiciary. Though the finer details differ greatly between our countries, the fundamental purpose is to provide interlocking systems of accountability that prevent abuses of power.
Accountability through the judiciary arises only when it is independent. Australia safeguards independence robustly through non-partisan appointment processes and a strong culture of keeping the judiciary free of politics. This has produced a judiciary that for decades was the most conservative in the common law world, deferring to the will of the elected legislature so as not to legislate from the bench while still enforcing constitutional red lines.
However, as we learnt at CPAC, things are very different in the United States. For decades, there has been constant partisan warfare over who occupies the benches. While traditional conservative judges always sought to keep the judiciary within its constitutional limits, the development of the judiciary in the United States has seen the birth of judicial activism as leftists sought to use the courts as a vessel to achieve their political goals. Unlike Australia, the United States has few safeguards against partisan infiltration of the courts. For the Supreme Court, contentious public confirmation hearings air the dirty laundry of potential justices and allow politicians to make personal and partisan attacks unrelated to judicial work.
The consequences of judicial activism have been dire.
Roe v Wade is correctly considered the high water mark of judicial activism in the United States. In
Roe, seven justices extraordinarily overturned a Texas law criminalising abortion without any textual constitutional basis. Instead, they meekly claimed the constitutional right to privacy enshrined abortion in the constitution. This is a product of activism because the judges in
Roe sought a political and moral outcome rather than interpreting the law and leaving the politics to the elected legislature and executive. Even ardently activist judges like Ruth Bader Ginsburg criticised
Roe as being on extraordinarily shaky ground.
Justice Ginsburg’s criticism proved prescient as
Roe was eventually overturned by
Dobbs v Jackson in 2022. At CPAC I spoke with some of the lawyers and organisations involved in overturning
Roe who explained how it took decades for the Supreme Court to have enough conservative justices who would hear the case and that President Trump’s judicial appointments were decisive in
Dobbs. The differing judicial styles in
Dobbs’ judgment are telling. The conservative justices undertook a deep historical and textual analysis of the Constitution to understand the correct application of the law. The activist justices in the minority instead bemoan the material consequences and hark on about morality rather than the law.
Australia cannot rest easy on its comparatively good judicial outcomes compared to the United States. Our High Court has seen a significant activist shift since the 70s culminating in the
Tasmanian Dam Case. There, the Court allowed the Federal government to stop Tasmania from damming the Franklin River on the basis that an international treaty Australia signed prohibited the dam. There is no constitutional provision for the Federal government relating at all to dams. Instead, the Court created a loophole for any treaty of any subject-matter to totally override the States essentially allowing foreign nations to dictate Australian policy. Unlike
Roe,
Tasmanian Dam is still alive and well and succeeded by a string of cases continuously expanding Federal power. The United States has shown the dark path this can take us down, but also that activist cases are on shaky ground if only we had the right judges.
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