Activism, Judicial

BIBLIOGRAPHY

Judicial activism is a philosophy that motivates judges to depart from strict adherence to judicial precedent, statutes, and strict interpretation of the United States Constitution. The juridical reasoning behind judicial activism is that the judiciary should have latitude in creating and interpreting law to protect the rights of political minorities from majoritarian excesses. Judicial activism has frequently been contrasted with judicial restraint. Judicial restraint means deference to other political branches, whether by upholding precedent or strictly interpreting statutory or constitutional provisions. The issue of judicial activism versus judicial restraint is volatile because of the consequences it can have on the law and society. Therefore, charges of judicial activism have been strategically used by both conservatives and liberals as concise campaign slogans to extol either the virtue or vice of the opposing candidate or political party. Many times, individuals affiliated with particular political parties or groups who view specific judicial decisions as conflicting with their philosophies characterize the judicial decision as an example of judicial activism. However, to discuss the issue in polarizing terms and apply political labels is overly simplistic. There are numerous Supreme Court decisions in the history of the United States, arguably results of judicial activism, that many would argue were constitutional milestones and others view as setbacks. Among these decisions are some of the most important landmark rulings in ensuring equity and fairness, as well as others that were patently flawed.

The landmark case Brown v. Board of Education (1954) ended the segregation in public schools that previously had been directed by the “separate but equal” doctrine. The decision overruled precedents and rejected state legislative statutes that allowed racial segregation in schools. In another example, in 1971 the Supreme Court in Reed v. Reed determined that the Equal Protection Clause of the Fourteenth Amendment guaranteed equality for women, and that a state law that discriminated based on gender was unconstitutional despite the fact that the Fourteenth Amendment does not state on its face that women and men should be treated the same. Most people today acknowledge that these Supreme Court rulings could be considered examples of judicial activism, but few would argue that they were not fair and just and should be overturned.

Judicial activism has also produced some less desirable results. In Dred Scott v. Sandford (1856), commonly known as the Dred Scott decision, the Supreme Court invalidated the Missouri Compromise and interpreted the Constitution as expressly allowing slavery, and held that people of African descent, whether or not they were slaves, could not be citizens of the United States. This was in direct contrast to the will of Congress, and set the scene for the Civil War.

An example of judicial restraint that resulted in a flawed decision is the Supreme Court ruling in Plessy v. Ferguson (1896), which stated that “separate but equal” public facilities met the requirements of the Fourteenth Amendment guarantees. Therefore, states could segregate facilities based on the color of a person’s skin. Examples of cases where judicial restraint produced positive results include the civil rights cases of 1964 in which the Supreme Court deferred to Congress and upheld the Civil Rights Act of 1964 (e.g., in Heart of Atlanta Motel, Inc. v. United States, 1964).

Neither judicial activism nor judicial restraint should be viewed as an absolute vice or virtue. Judicial activism and judicial restraint by the United States Supreme Court have both produced some of the wisest landmark decisions as well as some of the less desirable rulings. The U.S. experience with judicial review demonstrates that juridical philosophies defined as activism or restraint are not helpful in determining the quality of a judge or a judicial decision.

BIBLIOGRAPHY

Powers, Stephen P., and Stanley Rothman. 2002. The Least Dangerous Branch?: Consequences of Judicial Activism. Westport, CT: Praeger.

Smithey, Shannon Ishiyama, John Ishiyama. 2002. Judicial Activism in Post-Communist Politics. Law and Society Review vol 36, no. 4, 719-741.

Diana C. Noone

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