Judicial Activism

Judicial Activism, the charge that judges are going beyond their appropriate powers and engaging in making law and not merely interpreting it. Against this position is placed the ideal of judicial restraint, which counsels judges to resist the temptation to influence public policy through their decisions and decrees.

Judicial activism is not prisoner to any particular ideological or political viewpoint; it can be conservative as well as liberal. A long period of American history was characterized by conservative judicial activism, by a Supreme Court unwilling to allow the states or Congress to pass legislation that would regulate social or economic affairs. Typically such legislation—laws governing child labor, workers' hours, and so forth—would be invalidated as violations of the Constitution's Commerce Clause or Contracts Clause or of the judicially created doctrine of “liberty of contract” under the Due Process Clause of the Fourteenth Amendment (see Contract, Freedom of). The best‐known example of conservative judicial activism is Lochner v. New York (1905), a case in which the Court invalidated New York's law regulating the hours bakers could work as a violation of “liberty of contract,” a part of the doctrine of substantive due process under the Fourteenth Amendment.

More recently the Court has been subject to criticism that it is engaging in liberal activism. This has been especially the case since the advent of the Warren Court and the revolution that it wrought in civil liberties; but the charge has continued through the Burger Court and into the Rehnquist Court. The argument is that in the name of expanding the “rights” a majority of the justices find agreeable, the Court is twisting the Constitution by disregarding the original meaning of the Due Process and Equal Protection Clauses in order to reach desired results (see Original Intent). Probably the best‐known example of liberal activism is Roe v. Wade (1973), in which the Court struck down restrictive abortion laws as violating the “right to privacy” it had previously found inherent in the Due Process Clause of the Fourteenth Amendment.

What practitioners of liberal and conservative activism have in common is their willingness, at least as perceived by their opponents, to abandon the literal words of the Constitution in pursuit of what the Supreme Court considers to be the just or right or reasonable course of action, whether that be the right of employers to set whatever conditions they see fit for their employees or the right of a woman to abort a fetus. In both instances critics of judicial activism charge that such decisions are properly left under the Constitution to the legislative power of the states.

The distinction between judicial activism and judicial restraint is closely related to the distinction between interpretivism and noninterpretivism and the question of whether it is ever appropriate for judges to import new meaning into the old words of the Constitution.

A campaign against judicial activism became a hallmark of presidencies as ideologically diverse as those of Franklin D. Roosevelt, Richard M. Nixon, and Ronald Reagan.

See also Constitutional Interpretation; Judicial Self‐Restraint.

Bibliography

Raoul Berger , Government by Judiciary (1977).
Alexander M. Bickel , The Least Dangerous Branch (1962).

Gary McDowell