What Is Judicial Activism?

Judicial activism describes how a judge approaches or is perceived to approach exercising judicial review. The term refers to scenarios in which a judge issues a ruling that overlooks legal precedents or past constitutional interpretations in favor of protecting individual rights and serving a broader social or political agenda.

Coined by historian Arthur Schlesinger, Jr. in 1947, the term judicial activism carries multiple definitions. Some argue that a judge is a judicial activist when they simply overturn a prior decision. Others counter that the primary function of the court is to re-interpret elements of the Constitution and assess the constitutionality of laws and that such actions should, therefore, not be called judicial activism at all because they are expected.

As a result of these varying stances, use of the term judicial activism relies heavily on how someone interprets the Constitution as well as their opinion on the intended role of the Supreme Court in the separation of powers.

Origins of the Term

In a 1947 Fortune magazine article, Schlesinger organized sitting Supreme Court justices into two categories: proponents of judicial activism and proponents of judicial restraint. The judicial activists on the bench believed that politics play a role in every legal decision. In the voice of a judicial activist, Schlesinger wrote: "A wise judge knows that political choice is inevitable; he makes no false pretense of objectivity and consciously exercises the judicial power with an eye to social results."

According to Schlesinger, a judicial activist views the law as malleable and believes that law is meant to do the greatest possible social good. Schlesinger famously did not take an opinion on whether judicial activism is positive or negative.

In the years following Schlesinger’s article, the term judicial activist often had negative implications. Both sides of the political aisle used it to express outrage at rulings that they did not find in favor of their political aspirations. Judges could be accused of judicial activism for even slight deviations from the accepted legal norm.

Forms of Judicial Activism

Keenan D. Kmiec chronicled the evolution of the term in a 2004 issue of the California Law Review. Kmiec explained that charges of judicial activism can be levied against a judge for a variety of reasons. A judge might have ignored precedent, struck down a law introduced by Congress, departed from the model another judge used for a finding in a similar case, or written a judgment with ulterior motives to achieve a certain social goal.

The fact that judicial activism does not have a single definition makes it difficult to point to certain cases that demonstrate a judge ruling as a judicial activist. In addition, the number of cases displaying acts of judicial re-interpretation increases and decreases based on how re-interpretation is defined. However, there are a few cases, and a few benches, that are generally agreed upon as examples of judicial activism.

The Warren Court

The Warren Court was the first Supreme Court bench to be called a judicial activist for its decisions. While Chief Justice Earl Warren presided over the court between 1953 and 1969, the court handed down some of the most famous legal decisions in U.S. history, including Brown v. Board of Education, Gideon v. Wainwright, Engel v. Vitale, and Miranda v. Arizona. The Warren Court penned decisions that championed liberal policies that would go on to have a large impact on the country in the 1950s, 1960s, and on.

Examples of Judicial Activism

Brown v. Board of Education (1954) is one of the most popular examples of judicial activism to come out of the Warren Court. Warren delivered the majority opinion, which found that segregated schools violated the Equal Protection Clause of the 14th Amendment. The ruling effectively struck down segregation, finding that separating students by race created inherently unequal learning environments. This is an example of judicial activism because the ruling overturned Plessy v. Ferguson, in which the court had reasoned that facilities could be segregated as long as they were equal.

But a court does not have to overturn a case for it to be seen as activist. For example, when a court strikes down a law, exercising the powers given to the court system through the separation of powers, the decision may be viewed as activist. In Lochner v. New York (1905), Joseph Lochner, the owner of a bakeshop, sued the state of New York for finding him in violation of the Bakeshop Act, a state law. The Act limited bakers to working less than 60 hours per week and the state fined Lochner twice for allowing one of his workers to spend over 60 hours in the shop. The Supreme Court ruled that the Bakeshop Act violated the Due Process Clause of the 14th Amendment because it infringed on an individual's freedom of contract. By invalidating a New York law and interfering with the legislature, the court favored an activist approach.

Differentiating Between Judicial Activist and Liberal

Activist and liberal are not synonymous. In the 2000 presidential election, Democratic Party candidate Al Gore contested the results of more than 9,000 ballots in Florida that did not mark either Gore or Republican candidate George W. Bush. Florida's Supreme Court issued a recount, but Dick Cheney, Bush's running mate, called for the Supreme Court to review the recount.

In Bush v. Gore, the Supreme Court ruled that Florida's recount was unconstitutional under the Equal Protection Clause of the 14th Amendment because the state failed to institute a uniform procedure for the recount and handled each ballot differently. The court also ruled that under Article III of the Constitution, Florida did not have time to develop a procedure for a separate, proper recount. The court intervened in a state decision that affected the nation, taking an activist approach, even though it meant a conservative candidate—Bush—won the 2000 presidential election, proving that judicial activism is neither conservative nor liberal.

Judicial Activism vs. Judicial Restraint

Judicial restraint is considered the antonym of judicial activism. Judges who practice judicial restraint hand down rulings that strictly adhere to the “original intent” of the Constitution. Their decisions also draw from stare decisis, which means they rule based on precedents set by previous courts.

When a judge favoring judicial restraint approaches the question of whether a law is constitutional, they tend to side with the government unless the unconstitutionality of the law is extremely clear. Examples of cases where the Supreme Court favored judicial restraint include Plessy v. Ferguson and Korematsu v. United States. In Korematsu, the court upheld race-based discrimination, refusing to interfere with legislative decisions unless they explicitly violated the Constitution.

Procedurally, judges practice the principle of restraint by choosing not to take on cases that require constitutional review unless absolutely necessary. Judicial restraint urges judges to consider only cases where parties can prove that a legal judgment is the only means of solving a dispute.

Restraint is not exclusive to politically conservative judges. Restraint was favored by the liberals during the New Deal era because they didn’t want progressive legislation overturned.

Procedural Activism

Related to judicial activism, procedural activism refers to a scenario in which a judge's ruling addresses a legal question beyond the scope of the legal matters at hand. One of the most famous examples of procedural activism is Scott v. Sandford. The plaintiff, Dred Scott, was an enslaved man in Missouri who sued his enslaver for freedom. Scott based his claim to freedom on the fact that he had spent 10 years in an anti-slavery state, Illinois. Justice Roger Taney delivered the opinion on behalf of the court that the court did not have jurisdiction over Scott’s case under Article III of the U.S. Constitution. Scott’s status as an enslaved man meant that he was not formally a citizen of the United States and could not sue in federal court.

Despite ruling that the court did not have jurisdiction, Taney continued to rule on other matters within the Dred Scott case. The majority opinion found the Missouri Compromise itself to be unconstitutional and ruled that Congress could not free enslaved people in the Northern states. Dred Scott stands as a prominent example of procedural activism because Taney answered the principal question and then ruled on separate, tangential matters to further his own agenda of keeping slavery as an institution in the United States.

Sources

• Bush v. Gore, 531 U.S. 98 (2000).
• Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).
• "Introduction to Judicial Activism: Opposing Viewpoints." Judicial Activism, edited by Noah Berlatsky, Greenhaven Press, 2012. Opposing Viewpoints. Opposing Viewpoints in Context.
• "Judicial Activism." Opposing Viewpoints Online Collection, Gale, 2015. Opposing Viewpoints in Context.
• Kmiec, Keenan D. “The Origin and Current Meanings of 'Judicial Activism.'” California Law Review, vol. 92, no. 5, 2004, pp. 1441–1478., doi:10.2307/3481421
• Lochner v. New York, 198 U.S. 45 (1905).
• Roosevelt, Kermit. “Judicial Activism.” Encyclopædia Britannica, Encyclopædia Britannica, Inc., 1 Oct. 2013.
• Roosevelt, Kermit. “Judicial Restraint.” Encyclopædia Britannica, Encyclopædia Britannica, Inc., 30 Apr. 2010.
• Schlesinger, Arthur M. "The Supreme Court: 1947." Fortune, vol. 35, no. 1, Jan. 1947.
• Scott v. Sandford, 60 U.S. 393 (1856).
• Roosevelt, Kermit. The Myth of Judicial Activism: Making Sense of Supreme Court Decisions. Yale University Press, 2008.