The term “judicial activism,” in popular use since 1947, is almost as controversial as the behavior it describes. It is commonly understood to mean legal decisions that are influenced by a judge’s political or personal beliefs, rather than the Constitution, existing laws, or legal precedent. While this definition seems straightforward, it is not. The legal record often contradicts itself, because interpretations of the Constitution have changed over time. What counts as “activism,” and what counts as legitimate interpretation of the Constitution, is a matter of opinion and debate.
Interpretation of the Constitution
Because the Constitution is a framework, rather than a complete set of laws, lawmakers and judges have had to interpret it in designing new laws and issuing rulings. In drafting legislation, lawmakers use their best estimate of what the framers of the Constitution would have found acceptable. In re-evaluating the constitutionality of those laws—as Supreme Court Justices often do when cases come before them—Justices must also make their best approximation as to the framers’ intentions.
Strict adherence to the original intentions of the framers of the Constitution is called “originalism,” and was the guiding philosophy for several members of the U.S. Supreme Court in the 1990s and well into the twentieth century. What the framers would have said and thought, however, about issues such as semi-automatic weapons and Internet privacy—issues they could not have imagined in the 1700s—is the primary objection to originalism. Because it is impossible to know how the Constitution would have been different if it were written today, judges have to 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 determines whether justices are accused of judicial activism.
The Origins of Judicial Activism
U.S. Supreme Court justices have had the power to overturn laws, by declaring them unconstitutional, since 1803. That was the year of the landmark Marbury v. Madison ruling, which declared the Judiciary Act of 1789 unconstitutional and in the act of doing so established the principle of judicial review. Judicial review, an important part of the government’s system of checks and balances, allows the Supreme Court to reconsider the constitutionality of state and federal laws when they have been officially challenged. Judicial review is not a power granted to the court by the Constitution, but has, rather, been inferred from it: the Constitution grants the Supreme Court jurisdiction, or authority, over all laws. As this implies a responsibility, or at least a power, to invalidate laws that are shown to be unconstitutional, the Supreme Court has since 1803 re-evaluated the constitutionality of hundreds of laws, finding 163 of them unconstitutional by 2010. 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.
Worries about the Justices imposing their personal views in the judicial review process began almost immediately after Marbury. While most agreed that there should be an established means to prevent unconstitutional legislation, critics of judicial review believed that this power should rest with the 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. One group of four justices was described as “Judicial Activists” for, according to Schlesinger, using the court’s power to promote liberal social causes. On the opposite end of the spectrum were the justices who employed “judicial self-restraint,” in Schlesinger’s opinion—a concept that has since been shortened to “judicial restraint.”
The popularization of the term “judicial activism” has struck legal scholars as problematic, because it has no legal meaning. Rather, it has social meaning: as a term, it 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 was loudest 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 decisions that have had a lasting impact on American culture, beginning with Brown v. Board of Education (1954), which ended school segregation.
The decisions of the Warren court touched on many sensitive political issues, such as the rights of criminals and the separation of church and state. In Gideon v. Wainwright (1963), the court ruled that states are required to provide legal counsel for all defendants who cannot afford a lawyer, regardless of the severity of the crime, and in Miranda v. Arizona (1966), the court ruled that police officers must inform criminal suspects of their rights before any interrogation can take place. 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 compulsory prayer in public schools to be in violation of the separation of church and state as established in the First Amendment to the Constitution.
The decisions of the Warren court largely advanced the causes of liberal politics in the 1950s and 1960s, trending toward the human and civil rights causes that were beginning to matter to the country at large. Conservatives and other 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.
Accusations from the Left
Liberal judges, whose decisions have been deemed judicial activism by their critics, might have justified their rulings according to a simple fact: the complexity of the legal environment, which contains numerous contradictions. There are so many ways to justify a ruling on either side—legal precedent, accepted legal theory, the laws and the Constitution themselves—that judges must themselves take a position on what is best for society. This portrait of the judicial activist changed dramatically in the 1990s and 2000s, however. In these decades, the Supreme Court made several notable decisions that its critics on the left deemed judicial activism, even while the majority justices claimed to base their ruling on a strict originalist interpretation of the Constitution.
The most notorious of these cases was Bush v. Gore (2000). For more than a month after the presidential election of 2000, the state of Florida was engaged in recounting more than two million votes, the final count of which would determine the winner of the state’s twenty-five electoral votes, and therefore the presidency. While the Florida Supreme Court had permitted a manual recount, which would have missed the official deadline, an appeal to the Supreme Court by George W. Bush to stop the recount resulted in a favorable ruling. Speaking for the majority, Justice Antonin Scalia, the foremost originalist on the court, argued that the recount would cause the plaintiff “irreparable harm.” Stopping short of accusing the majority Justices of judicial activism, the dissenting Justices nevertheless argued that the decision violated the principles of judicial restraint.
Another decision to draw the charge of judicial activism for its apparent political partisanship was Citizens United v. Federal Election Commission (2010). 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 was unconstitutional. Critics were quick to levy the charge of judicial activism in this case, alleging that the decision to override legal precedent was based on disagreement with existing laws, rather than a constitutional foundation. The case appeared to stand as evidence that Chief Justice John Roberts was leading the Court toward deregulating the campaign finance reform that had slowly built up over the previous decades.
Is Neutrality Possible?
In his original article on the Supreme Court that popularized the term “judicial activism,” Arthur Schlesinger Jr. wrote that the Court cannot possibly escape politics. Nevertheless, there is an expectation that Supreme Court justices, who are appointed rather than elected, will issue rulings without regard to political pressures. In their confirmation hearings, most Supreme Court justices have to demonstrate that they can be neutral in making decisions about controversial issues. Evidence from other areas of public life, however, suggests that bias is ever-present. While judicial activism—the result of such bias among justices—remains a factor in shaping public policy and civic life, whether it is a force for good or for bad is open to continued debate.