Judicial Activism: Overview

Introduction

Although arguments exist about both the definition and the implications of judicial activism, Black’s Law Dictionary defines it as a judge’s reliance on personal political, social, or cultural opinions when issuing a legal verdict. Judicial activism traces its roots to the early stages of the American republic, but in the twenty-first century, it has become a technique for disparaging not only the decisions of the US Supreme Court but also the opinions of both liberal and conservative politicians.

Historically, the term has been used both positively and negatively to describe controversial, progressive, or antimajoritarian Supreme Court rulings. However, its usage increased significantly in the latter half of the twentieth century. Some contend that judicial activism has tipped the three-pronged balance of power of the US federal government too heavily toward the judiciary: They assert that justices sometimes abandon their mandate of interpreting and applying the Constitution in favor of policy making, a role designated for the legislative branch. Others argue that, contrary to public perception, the federal courts overturn only a very small percentage of the policies of the executive and legislative branches, and furthermore, that judges are often called upon to be “activists” in order to uphold justice.

Understanding the Discussion

Judicial restraint: Often considered an antonym of “judicial activism,” this occurs when a judge interprets the Constitution in a way that restricts the power of the court, rather than enlarges it. Judicial restraint is often used to uphold legislation passed by Congress.

Majoritarianism: A theory that bylaws of a group should be based on a numerical voting majority.

Originalists: Those who believe the Constitution is explicit and should be followed literally in political and legal matters.

Perfectionists: Those who believe the Constitution provides general guidelines, but not hard-and-fast rules, about its application to laws and policy.

Precedent: Previous decision that serves as guide in subsequent situations.

Stare decisis: Literally means “to stand by a decision”; adherence to judicial precedence except when doing so would require the abdication of principles of justice.

History

Keenan D. Kmiec outlines five criteria for labeling a judge “activist”: nullifying constitutionally based actions of the executive and legislative branches; ignoring precedent; creating judicial “legislation”; disavowing the “interpretive methodology” of the judicial community; or passing judgment in order to influence public policy. American historian Arthur Schlesinger Jr. first used the term “judicial activism” in a January 1947 essay in Fortune, in which he examines the contemporary Supreme Court justices. In the essay, he labels four of the nine justices “activist,” most notably Hugo Black and William O. Douglas, prominent progressives who did not necessarily adhere to stare decisis. Schlesinger juxtaposes these justices with Justice Felix Frankfurter, a champion of judicial restraint. Though Schlesinger does not develop a cohesive definition for judicial activism, Kmiec points out that, by associating the term with Black and Douglas, he effectively associates it with a progressive ideology, thereby setting a pattern for how the term has been understood since.

Though “judicial activism” was coined by Schlesinger, the concept dates to the early American republic. Charles Grove Haines and Foster H. Sherwood observe that Thomas Jefferson was at odds with Chief Justice John Marshall, whose judgments he perceived as a form of judicial activism because they promoted a Federalist agenda despite the Antifederalist persuasions of both the president and the populace. However, Roger Craig notes that between 1801 and 1835, the Supreme Court under Chief Justice Marshall presented rulings that both decreased and increased the powers of the federal government. Many of these cases were derided as “activist” rulings by their opponents, including, on one hand, Marbury v. Madison (1803, striking down parts of the Judiciary Act of 1789 that expanded the jurisdiction of the Supreme Court beyond that permitted by the Constitution), and, on the other hand, McCulloch v. Maryland (1819, holding that Congress’s power to tax and spend also allows it to form a federal bank).

As Craig discusses, court decisions can be labeled activist either if they undermine the decisions of the executive and legislative branches without due cause or if they fail to defend the rights of individuals. By this definition, the Supreme Court of the post–Civil War period could be labeled activist for its acquiescence to the military and for its suppression of individual liberties, as exemplified in Plessy v. Ferguson (1896), in which the “separate but equal” status of African Americans (specifically in Louisiana) was upheld.

Though the term “judicial activist” would later be used to disparage the left-leaning elements of the Supreme Court, in the early decades of the twentieth century, the court was accused of activism from a politically conservative base. During the Lochner era (which derives its name from Lochner v. New York, a 1905 decision that overturned a New York statute that restricted workday hours), the court played an active role in overturning legislation at the state and federal levels that protected the rights of workers, in order to give industry free reign to grow unencumbered by labor laws. The Lochner era ended when the court decided a Washington State minimum-wage law was constitutionally sound in West Coast Hotel Co. v. Parrish (1937).

After Schlesinger’s essay appeared in 1947, the liberal contingent of the Supreme Court was labeled activist more often than the conservative wing. The conflation of judicial activism with liberalism is often linked to the socially minded rulings of the Earl Warren Supreme Court (1953–69). In 1954, the court ruled unanimously in the case of Brown v. Education, overturning state laws that upheld segregation in public schools, declaring such a practice unconstitutional. Although the ruling took several years to implement, the court had taken an activist role on a topic that it felt impinged on individual liberties.

The Warren Court made additional decisions that many construed as activist, including overturning the Arizona Supreme Court’s decision in the case of the State v. Miranda (1966). The Supreme Court’s ruling established what has become known as the “Miranda rights”: criminal suspects must be made aware of their rights to obtain legal counsel and to remain silent. Again, the Warren Court supported individual rights over a governmental decision. The Warren Court influenced American policy making during a time of intensive social change in the United States and is often considered the embodiment of judicial activism.

Other cases in which the Supreme Court has been accused of judicial activism include Roe v. Wade (1973) and Bush v. Gore (2000). In the former, the court overturned numerous restrictions on abortion at both federal and state levels, employing the Fourteenth Amendment’s due process clause to do so. Perhaps more than any other case in recent memory, Roe v. Wade became a symbol of both the slippery definitions of morality and personal freedom in the United States and a case in point for those who claim judicial activism is used to promote a liberal political agenda. In the latter case, which stemmed from the disputed ballot results in Florida in the 2000 presidential election between George W. Bush and Al Gore, the Supreme Court has been accused of essentially appointing the president, by claiming, in part, that no ballot-counting method would allow the votes to be tallied by the December 12 deadline for assigning the number of electors.

Judicial Activism Today

The term “judicial activism” is used more in the twenty-first century than ever before, by individuals on both ends of the political spectrum to express dissatisfaction with court decisions and to imply a certain lack of responsibility by the courts. The debate continues as to what actually constitutes judicial activism, but as Kermit Roosevelt III has said, judicial activism often “turns out to be little more than rhetorically-charged shorthand for decisions the speaker disagrees with.” Indeed, court decisions derided by either conservative or liberal camps have been handed down since 2008.

In one example of supposed judicial activism, a three-person panel for the Ninth Circuit Court of Appeals, in the case of Perry v. Brown (2012), overturned an amendment to the California state constitution outlawing same-sex marriage, as voted on by California voters in 2008. Many accused the members of the panel of acting according to their own political persuasion and applying questionable precedent in order to justify their decision to strike down Proposition 8.

In 2012, two federal courts declared portions of the Patient Protection and Affordable Care Act (PPACA) unconstitutional, and it looked as though the Supreme Court would uphold those rulings. In response, President Barack Obama accused the courts of judicial activism, claiming that unelected officials should not be given the opportunity to upend a piece of legislation voted on and passed by Congress. (PPACA was upheld by the court in a 5–4 decision. The PPACA was challenged again by Republicans in 2018 after the PPACA's penalty tax was reduced to zero; the Supreme Court voted to dismiss the lawsuit in 2021 in a 7–2 ruling.) Obama’s use of the term seemed to illustrate a common misinterpretation of the expression: According to the Constitution, one of the purposes of the judiciary branch is precisely to upend legislation that violates the Constitution, even if Congress votes to pass the law. This mandate is what provides the system of checks and balances in the three-branch federal government—just because “the people” or their representatives pass a law does not mean that law is constitutional. The purpose of the judiciary is to evaluate laws and invalidate them if they do not pass constitutional muster—or uphold them if they do—regardless of their popularity.

Other cases from the 2010s that are frequently cited as examples of judicial activism include Citizens United v. Federal Election Commission (2010); concerning political campaign spending by corporations and other organizations, Obergefell v. Hodges (2015), concerning the right of same-sex couples to marry; Janus v. AFSCME (2018), concerning union due collections from workers who benefit from collective bargaining agreements, a decision that overturned the precedent of Abood v. Detroit Board of Education (1977); and Department of Homeland Security v. Regents of the University of California (2020), concerning whether President Donald Trump had the authority to dismantle the Obama era Deferred Action for Childhood Arrivals program.

In 2022, the Supreme Court was again accused of judicial activism in regards to the court case Roe v. Wade—this time by liberal-leaning political supporters—when the court overturned the landmark judgement in Dobbs v. Jackson Women's Health Organization (2022).

Co-Author

Tracey M. DiLascio, Esq., is a practicing small business and intellectual property attorney in Framingham, Massachusetts. Prior to establishing her practice, Ms. DiLascio taught writing and social science courses in Massachusetts and New Jersey colleges, and served as a judicial clerk in the New Jersey Superior Court. Ms. DiLascio is a graduate of Boston University School of Law and Rensselaer Polytechnic Institute.

These essays and any opinions, information or representations contained therein are the creation of the particular author and do not necessarily reflect the opinion of EBSCO Publishing.

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