Judicial activism and the Supreme Court

DEFINITION: Term applied to court decisions seen as going beyond the usual canons of constitutional or statutory interpretation; it is the opposite of judicial self-restraint.

SIGNIFICANCE: When the Supreme Court engaged in judicial activism, it made important and often controversial public policy and was a major player in shaping national policies.

The term can be applied to any decision in which the Court alters or nullifies the policy of another policymaker, such as Congress or the president. Judicial activism occurs whenever the Court exercises judicial review or interprets a constitutional or statutory provision to mean something different than it was commonly thought to mean. Typically, however, the term is used negatively by critics of a Court decision or doctrine. Few justices or judges overtly champion judicial activism.

Sometimes the Court is criticized as being too counter-majoritarian. As an unelected body, critics charge, the Court should be cautious about finding laws adopted by democratically elected bodies unconstitutional. The classic arguments on this issue are found in Justice Robert H. Jackson’s opinion and Justice Felix Frankfurter’s dissent in the compulsory flag salute case, West Virginia State Board of Education v. Barnette (1943). The preferred freedoms doctrine of the 1940s and its modern counterpart, the strict scrutiny level of review, also represent counter-majoritarian activism because they consciously place minority rights ahead of majority preferences.

Critics also charge the Court with activism when it interprets a constitutional provision differently from its presumed original intent or the normal meaning of its text. Roe v. Wade (1973) is a good example of the Court giving a new meaning to the Fourteenth Amendment’s Due Process Clause. Another example often cited is the position taken by Justices William J. Brennan, Jr. and Thurgood Marshall in their dissents that capital punishment is unconstitutional. (Justice Thurgood Marshall’s dissent in Gregg v. Georgia, 1976, is a good illustration of an activist opinion.) Brennan generally defended judicial activism (although not by name) when he argued that the spirit of constitutional provisions must be interpreted to apply to the United States in the twentieth century. Occasionally, the Court is charged with judicial activism when it overrules or severely modifies one of its own precedents (for example, when Brown v. Board of Education, 1954, overruled Plessy v. Ferguson, 1896).

Judicial activism can help both conservative and liberal causes. From 1890 to 1937, when the Court appeared to support business interests by developing the freedom of contract and dual federalism doctrines (as in Lochner v. New York, 1905, and Hammer v. Dagenhart, 1918), Progressives and later New Dealers protested loudly that the Court was engaged in excessive activism. Under Chief Justice Earl Warren (1953-1969), the shoe was on the other foot. Conservatives charged the Court with liberal activism for making controversial decisions that significantly reshaped the law in criminal justice, legislative apportionment, right of privacy, libel, and other areas. Although less activist following the Warren era, the Court still engaged in some activism, such as bringing commercial speech under First Amendment protection. However, some 1990s decisions were activist in a conservative sense, for example, Printz v. United States (1997), which struck down portions of the 1993 Brady Act controlling the sale of handguns.

In the 2020s, the Supreme Court was widely seen as making decisions steeped in judicial activism that exacerbated already deep divides on important issues for many Americans. The most striking was the Court’s actions to overturn Roe v. Wade. However, the conservative majority Court also practiced judicial activism in cases on gun laws, the separation of church and state, and the environment.

Bibliography

Bork, Robert H., editor. “A Country I Do Not Recognize”: The Legal Assault on American Values. Hoover Institution Press, Stanford University, 2005.

Debusmann Jr., Bernd. “How the Supreme Court Became a Political Battlefield.” BBC, 3 July 2024, www.bbc.com/news/articles/crg4rz6zedyo. Accessed 7 Apr. 2026.

Keck, Thomas Moylan. The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism. University of Chicago Press, 2004.

Powers, Stephen. The Least Dangerous Branch? Consequences of Judicial Activism. Praeger, 2002.

Rosen, Jeffrey. The Most Democratic Branch: How the Courts Serve America. Oxford University Press, 2006.

Schwartz, Herman, ed. The Rehnquist Court: Judicial Activism on the Right. Hill & Wang, 2002.

Shaw,Katherine, and Melissa Murray. “Dobbs and Democracy.” Harvard Law Review, vol. 137, no 3, 10 Jan. 2024, harvardlawreview.org/print/vol-137/dobbs-and-democracy/. Accessed 7 Apr. 2026.

“The Supreme Court’s Judicial Activism Will Deepen Cracks in America.” The Economist, 29 June 2022, www.economist.com/leaders/2022/06/29/the-supreme-courts-judicial-activism-will-deepen-cracks-in-america. Accessed 7 Apr. 2026.

Tushnet, Mark. A Court Divided: The Rehnquist Court and the Future of Constitutional Law. W. W. Norton, 2005.

Wolfe, Christopher. Judicial Activism: Bulwark of Freedom or Precarious Security? Rowman & Littlefield, 1997.