Judicial activism

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Resolved ... that the State Legislatures are not the proper tribunals to determine the Constitutionality of the laws of the General Government — that the duty of such decision is properly and exclusively confided to the Judicial department.[1]
—New Hampshire state legislature, 1800

Judicial "activism" is when a judge or court issues a decision you don't like.

By rhetorical convention, judicial activism occurs when the courts issue rulings that make new law rather than merely explicate and interpret existing law. Judicial activism has also been derided as "legislating from the bench."[2] There are two fundamental problems with the accusation of judicial activism. First, the basis for much of English Common Law, which serves as the foundation for all law in England and Wales, 49 of 50 states in the United States, all provinces and territories of Canada except Quebec, and all of Australia and New Zealand, is the accumulation of rulings made by judges in similar cases in the absence of clear or controlling statutes. Second, every judicial decision requires interpretation of the law and every interpretation makes law.

Examples of judicial activism[edit]

Conservatives like to believe that only liberals and left-wingers engage in judicial activism, and indeed there are some left-wing schools of legal thought that advocate just that. The field of critical legal studies maintains that "all law is politics" and aims to reinterpret law in a fundamental way to serve political ends.[3]

In a historical sense, the most blatant example of judicial activism was the period known as Lochner eraWikipedia in which the Supreme Court used a broad interpretation of due process to strike down economic regulations of working conditions, wages and work hours in favor of a market fundamentalist economic policy.[4] The Lochner Era is descibred by legal scholar Robert Bork as "the symbol of judicial usurpation of power"[5] and John Roberts, in his hearings to become Chief Justice, was critical of this period of the Supreme Court.[6]

Some of the rulings of the Lochner Era include:

  • United States v. E. C. Knight Co.Wikipedia (1895), limiting Congress' power to prevent monopolies. This ruling was later overruled by Northern Securities Co. v. United StatesWikipedia (1904) in which the Court upheld the Sherman Antitrust Act and is one of the most important rulings from this period as it allowed Theodore Roosevelt[7] and William Howard Taft[8] to dismantle monopolies (referred to as "trusts") during their time in the White House, though the latter one far less eagerly;
  • Allgeyer v. LouisianaWikipedia (1897), striking down state legislation prohibiting foreign corporations from doing business in the state based on a broad interpretation of the Due Process Clause of the Fourteenth Amendment by interpreting the word "liberty" in the amendment as economic liberty.
  • Lochner v. New YorkWikipedia 1905), striking down state legislation limiting weekly working hours. Beyond giving this period its name, this ruling also saw one of the earliest usage of the term judicial activism by dissenting judge Oliver Wendel Holmes, Jr.
  • Adair v. United StatesWikipedia (1908), striking down federal legislation prohibiting railroad companies from demanding that a worker not join a labor union as a condition for employment ("yellow-dog contracts") which was repealed with New Negro Alliance v. Sanitary Grocery Co.Wikipedia (1938) in which the Court upheld the Norris-La Guardia Act of 1932.
  • Gompers v. Buck's Stove %26 Range Co.Wikipedia (1911) the Court dismisses a prison sentence against Samuel GompersWikipedia, a key figure in the American labor movement, who was sentenced to prison after a union's strike was deemed illegal on prodecural grounds.
  • Debs v. United StatesWikipedia (1919), the Court upheld the arrest and imprisonment of Eugene Debs under the Espionage Act of 1917, severely restricting free speech. This ruling, along with Schenck v. United StatesWikipedia (1919), was overruled by Brandenburg v. OhioWikipedia (1969).
  • Hammer v. DagenhartWikipedia (1918), striking down federal regulation of child labor. This was later overruled by United States v. Darby Lumber Co.Wikipedia (1941) which upheld the Fair Labor Standards Act under the Commerce Clause.

Ultimately the Lochner era came to an end in the late 1930s when President Franklin Roosevelt threatened to pack the court.[9] In spite of its horrid record for protecting corporations and even attacking basic civil liberties, libertarians still defend the Lochner Era as a bastion of economic freedom.[10]

Under the influence of the New Right and libertarianism, judicial activism has been slowly ressurected for partisan reasons.

Take for example the Supreme Court's decision in Michigan v. Long.[11] Until 1983, the Supreme Court routinely refused to hear appeals from state court determinations where the decisions below were based only in part on federal law and were not otherwise in violation of federal law.[12] There were several reasons for this, namely the "case or controversy" requirement of the Federal Constitution[13] as well as the principle of federalism. This all changed with the Court's decision in Long, which established the Supreme Court's authority to hear appeals from state courts regardless of whether the state court's decision violated federal law. Why did the Court do this? Because the Supremes didn't like the fact that the Michigan Supreme Court had afforded a criminal defendant too much protection under the Fourth Amendment.

Furthermore, many studies have shown that conservative judges are far more likely to be "activist" in the sense of overriding elected legislatures. The most "activist" judge on the US Supreme Court has been shown to be Clarence Thomas.[14]

Arch-conservative Antonin Scalia was an outspoken opponent of judicial activism. Nevertheless, Mr. Scalia was balls deep in judicial activism when he joined the majority opinion in Medellin v. Texas,[15] which held that despite the rather explicit language of the Constitution,[16] the Vienna Convention on Consular Relations—to which the United States was a party (ratified, not just signed) at the time of defendant's arrest—did not apply to Medellin. Whoops!

Even more hilarious was Scalia's use of the substantive due process doctrine—which he considers a product of judicial activism—in order to reach a favorable (to him) outcome in McDonald v. Chicago.[17]

Perhaps the most extreme example of recent "judicial activism" was when, in early 2001, the Supreme Court overrode Florida's right to decide how to assign their electoral votes in Bush v. Gore.[18]

Interpretation of the law[edit]

The judicial branch's function in government is interpretation of the laws passed by the legislative branch. When a judge's interpretation is seen as liberal, they are labeled an "activist judge". When the interpretation is viewed as conservative, the judge is an originalist or strict-constructionist.


  1. Counter-resolutions of Other States in Response to those of Virginia, &c.
  2. Daniel Solove, What Exactly Does “Legislating from the Bench” Mean?
  3. Critical legal theory
  4. Cornel Law School Lochner Era, retriedved 27 October 2020
  5. Media Matters: George Will Enlists In Campaign To Repeal 20th Century With Defense Of Lochner, originally published 9 August, 2011
  6. Wall Street Journal, Lochner and Liberty, originally published in 29 September, 2009
  7. EHistory from Ohio State University:Roosevelt and the trusts
  8. Miller Center William Taft: Domestic Affairs
  9. The Supremes' Greatest Hits: The 37 Supreme Court Cases that Most Directly Affect Your Life by Michael G. Tratchman
  10. Yale: Lochner and Constitutional Historicism by Jack M. Balkin Archived
  11. 463 U.S. 1032 (1983).
  12. Id. at 1065-69 (Stevens, J., dissenting).
  13. U.S. Const. Art. III § 2 cl. 1. In Long, the Michigan Supreme Court determined that the state's conduct violated the Fourth Amendment of the U.S. Constitution as well as Articles 1 § 11 of the Michigan State Constitution. Thus, even if the Michigan Supreme Court's interpretation of the Federal Constitution was incorrect--which the U.S. Supreme Court concluded that it was--the issue is entirely moot as Michigan State law would remain the same. The irony is that this principle notwithstanding, this was not the case--on remand, the Michigan Supreme Court reversed itself.
  14. http://www.nytimes.com/2005/07/06/opinion/06gewirtz.html?_r=0
  15. 552 U.S. 491 (2008).
  16. "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land..." U.S. Const. Art. VI § 2.
  17. Is Justice Scalia Abandoning Originalism?
  18. 531 U.S. 98 (2000).