The term judicial activism has different connotations in different contexts. In legal and academic writing, judicial activism is often contrasted with judicial restraint and refers to procedural approaches to judicial review of laws. In this context, judicial activism describes the level of willingness to strike down previous decisions or even to take up cases at all. However, beginning in the second half of the twentieth century, judicial activism took on a political connotation as well, usually as a criticism of judges who were believed to base their rulings on their own personal and political beliefs, including their interpretations of the Constitution and the purpose of the Supreme Court, rather than on existing law and legal precedent. Both left- and right-leaning critics often decry such an approach but have differing views of which court decisions represent unacceptable judicial activism. Thus, what counts as "activism" and what counts as legitimate jurisprudence can be a matter of opinion and debate.
Interpretation of the Constitution
Because the Constitution is a framework rather than a set of laws, lawmakers and judges have to interpret it in designing new laws and in issuing rulings based on the laws. Strict adherence to the original intentions of the framers of the Constitution is called originalism, and it is the guiding philosophy for several members of the US Supreme Court from the late 1980s into the twenty-first century up to the present.
Other judges believe that the framers designed the Constitution to be flexible to account for changes over time and often describe it as a "living document." Non-originalists point out that while the framers could not have conceived of issues like semiautomatic weapons or internet privacy, they understood that their work had to be broad enough to be interpreted for future generations in situations they could not anticipate. Because it is impossible to know how the Constitution would have been different if it were written today, judges must come up with an interpretation that allows them to rule fairly. How much these rulings vary from legal precedent and how influenced they appear to be by the political climate of the day often determine whether judges are viewed as engaging in judicial activism.
The Origins of Judicial Activism
US Supreme Court justices have the power to overturn laws by declaring them unconstitutional. This principle of judicial review was established in the 1803 landmark ruling Marbury v. Madison. Judicial review forms an important part of the government's system of checks and balances by allowing the Supreme Court to reconsider the constitutionality of state and federal laws when they have been officially challenged. Judicial review is not a power described in the Constitution but one that has been inferred from it because the Constitution specifically grants the Supreme Court jurisdiction, or authority, over cases involving points of constitutional or federal law. This implies a power, or at least a responsibility, to invalidate laws that are declared unconstitutional by a majority of the sitting Supreme Court justices. Initially, however, the court was slow to embrace the practice of judicial review at the federal level. After Marbury, it was more than fifty years before it next struck down a federal law. However, since 1803 the Supreme Court has reevaluated the constitutionality of hundreds of laws. As of 2020, the Supreme Court has found 487 laws to be unconstitutional in whole or in part.
Worries about the justices imposing their personal views in the judicial review process began almost immediately after Marbury. While lawmakers agreed that means should be established to prevent unconstitutional legislation, critics of judicial review believed that this power should rest with Congress or with the states, not with the courts. It was not until the twentieth century, however, that controversial instances of judicial review inspired the term "judicial activism."
The term "judicial activism" was first introduced to a popular audience by the historian and social critic Arthur Schlesinger Jr. in a 1947 article in Fortune magazine. The article included profiles of all nine Supreme Court justices and described the court's internal politics. Schlesinger described a group of four justices as "Judicial Activists" who used the court's power to promote liberal social causes. On the opposite end of the spectrum were three justices who employed "judicial self-restraint," in Schlesinger's opinion—a concept that has since been shortened to "judicial restraint." The two remaining justices were considered as falling somewhere in between the two categories.
Legal scholars argue that the popularization of the term "judicial activism" is problematic because it has no set meaning and accusations of activism can be made for a variety of reasons. They point out that the term is used primarily to describe judicial decisions with which the person using the term disagrees. As popular interpretations of the Constitution have changed over time, so has the political alignment of allegations of judicial activism.
Accusations from the Right
At the time it was first popularized, and for the next several decades, the term "judicial activism" was routinely applied to liberal justices and their rulings. The charge of judicial activism is prominent in criticisms against the decisions of the court under Chief Justice Earl Warren, who presided from 1953 until 1969. During his tenure, the Warren Court handed down civil rights decisions that have had a lasting impact on American culture, beginning with Brown v. Board of Education (1954), which ended racial segregation in public schools. Critics described the Brown decision as activist because it overturned a more than fifty-year-old precedent, the 1896 decision in Plessy v. Ferguson that declared constitutionally segregated, "separate but equal" accommodations for Black people. The court also determined in Loving v. Virginia (1967) that laws against interracial marriage were unconstitutional.
The decisions of the Warren Court touched on many sensitive political issues such as the rights of criminals, separation of church and state, freedom of speech, voting rights, and criminal justice. In Gideon v. Wainwright (1963), the court ruled that states are required to provide legal counsel for all defendants in criminal cases who cannot afford a lawyer, and in Miranda v. Arizona (1966), the court ruled that police officers must inform criminal suspects of their rights to remain silent while in police custody and to have an attorney present during an interrogation. Both these cases have had a lasting impact on the justice system. Another far-reaching case heard by the Warren Court was Engel v. Vitale (1962), which deemed prayer in public schools to be in violation of the separation of church and state under the Establishment Clause of the First Amendment to the Constitution.
Critics of liberal judicial activism also point to judgments on the Warren Court that provided for a "right to privacy" that is not described in the Constitution but which justices inferred in a series of decisions. In the 1965 decision of Griswold v. Connecticut, the court struck down a Connecticut state law that forbade the sale of contraceptives, basing it on a right to privacy inferred from several amendments in the Bill of Rights and the Fourteenth Amendment. This became a precedent for other decisions including the 1973 Roe v. Wade case that overturned state bans on abortion and the 2003 Lawrence v. Texas case that ended state sodomy and fornication laws that criminalized consensual adult sexual activities.
In 2015, while many states had legalized same-sex marriage, other states continued to have bans on same-sex marriage through either laws or state constitutional amendments. The Obergefell v. Hodges decision in June of 2015 ended bans on same-sex marriage across the country, finding them to violate the equal protection clause of the Fourteenth Amendment. Conservative justice Antonin Scalia criticized the decision as activism, writing, "[the majority] have discovered in the Fourteenth Amendment a 'fundamental right' overlooked by every person alive at the time of ratification, and almost everyone else in the time since."
From the time of the Warren Court in the 1950s and 1960s, conservative critics of the court argued that the justices repeatedly overstepped their bounds. In the decades to come, after the wave of reform to education, civil rights, housing, employment, and other social issues had passed, the charge of judicial activism was to pass to the other side of the aisle. Conservative Republican politicians were able to use criticism of liberal court decisions as a potent argument for electing more conservative legislators, who would in turn appoint judges and Supreme Court justices who advocated originalism as a way to shape court decisions in their favor.
Accusations from the Left
The portrait of the judicial activist changed dramatically in the 1990s and into the twenty-first century. The conservative justices appointed to the Supreme Court and lower federal courts are heavily influenced by the Federalist Society, an organization of legal professionals that endorses originalism. However, critics state that, in practice, "originalism" is a veneer justifying decisions that upend precedent and overextend judicial review in favor of conservative opinions as much as liberal judges had been accused of doing.
Bush v. Gore (2000) has been described as a prime example of conservative judicial activism. After the presidential election of November 2000, Democrats sued Florida to require an official recount to determine the winner of the state's twenty-five electoral votes and, ultimately, the presidency. While the Florida Supreme Court ruled in the Democrats' favor , an appeal to the Supreme Court by Republicans to stop the recount succeeded, and the electoral votes were awarded to George W. Bush. This resulted in the Supreme Court essentially picking the winner of the presidency. Speaking for the majority, Justice Antonin Scalia, the foremost originalist on the court, argued that the recount would cause the plaintiff "irreparable harm." The dissenting justices argued that the decision violated the principles of judicial restraint.
In a 2008 case, District of Columbia v. Heller, even conservative critics suggested that the decision was overly activist. This decision rejected the District of Columbia's ban on handguns by interpreting the Second Amendment as guaranteeing the right to bear arms to individuals rather than the right being limited to militias. Conservative federal appeals court jurist Richard Posner said that taking gun restrictions out of local and state government control "was the mistake that the Supreme Court made when it nationalized abortion rights in Roe v. Wade."
The decision in Citizens United v. Federal Election Commission (2010) also attracted charges of judicial activism for its apparent political partisanship. In that ruling, the court determined that First Amendment protections of free speech extended to corporations and that laws limiting corporate spending on political advertisements in advance of elections were unconstitutional. Critics alleged that the decision to override legal precedent was clearly split along ideological lines and based on disagreement with existing laws, rather than a constitutional foundation.
The Bush v. Gore decision stipulated that it was a unique case and should not be relied on as a precedent for future cases. However, in 2020, as President Donald Trump attempted to challenge election losses in key states through court cases, the lawsuits frequently cited Bush v. Gore as precedent for the Supreme Court to intervene. Lower courts and the Supreme Court repeatedly rejected this argument, which some observers suggest is a possible step back from the level of activism conservative supporters hoped for from recent Supreme Court appointments.