On Judicial Activism

Identifying the proper role of the judiciary is an integral aspect of the continuing struggle for a rational government. Contemporary analysis of the courts often obfuscates a clear solution to this issue with overlapping and frequently imprecise terminology. Academic scholars of the courts speak of judicial activism and restraint, conservatism and liberalism, legalism and realism without adequate contextualization, occasionally by intention (e.g. if a “conservative” judge is “judicially active,” he is “usurping the democratic processes of the legislature,” but when a “liberal” judge is “judicially active,” he is “defending the rights of minorities”). They attach moral and political connotations to concepts which have none inherent in their essence, misleading the public – by design or accident – to identify certain judicial practices with particular political or moral ideologies. Worse still, the terms are often used so loosely that academics themselves do not even agree on their meanings.

This is particularly true in the case of “judicial activism.” Naturally, judicial activism or restraint is not the only aspect of a judge’s interpretive process. A judge’s broader methodology when interpreting the law in the context of the Constitution is central to the ultimate decision, but whether a judge believes the courts should play a large (active) or limited (restrained) role in public policymaking comprises a considerable portion of his methodology. And so, it is specifically judicial activism and restraint being examined here.

The phrase “judicial activism” is employed to describe the nature of judicial rulings, though it is used in numerous conflicting ways.[1] For the sake of simplicity, this article will focus on just two. The first, as it is used by Dr. Thomas Sowell, means: “When the law says A, and the judge wants it to mean Z, he interprets it as meaning Z.”[2] In Sowell’s perspective, judicial activism is a politically charged concept, associated with attempts to structurally weaken the Constitution in order to promote usually leftist political ideals. Undoubtedly, leftist critics apply the same term to judges promoting right-leaning policies from the bench, reinforcing Prof. Caprice Roberts’s observation that the term is often little more than a pejorative smear to “vilify judges and their decisions” whenever someone finds them disagreeable.[3] It is a heavily subjective term, improper for rational discussion regarding the proper role of the judiciary. In its second, more objective usage, judicial activism is a measure of the frequency with which a judge attempts to strike down legislative or executive measures.[4]

Though Dr. Sowell certainly has much insight to offer regarding judicial politics, the second interpretation of judicial activism is more beneficial in determining the appropriate role of the judicial branch in the government as a whole. For while Dr. Sowell – a judicial originalist (i.e., one who believes the law should be read in the plain, original meaning of the text, unless so altered through future law or amendment) – is correct in believing judicial activism is politically motivated, he incorrectly believes there is an apolitical way to interpret the law; for even originalism, however reasonable a doctrine, is political by its nature.[5] It is less a matter of what a judge wants the law to say, and more a matter of what a judge’s philosophy leads him to believe it does say, and what he considers to be his own role in its interpretation and the role of the judiciary in the state as a whole.

Naturally, this examination deals solely with judges that possess an interpretative function in the judiciary. Many judges have purely administrative functions and are bound by the letter of the law as it is handed down to them from the legislature, executive, or upper appellate courts and are not free – by the nature of their position – to produce public policy. Their sole function is to administer it. In addition, much of the judiciary is “restrained by circumstance” or “by political nature” at the state level. This means that while an appellate court judge or justice on a state supreme court may possess the requisite constitutional powers to be judicially active (that is, to strike down a legislative statute, executive order, or bureaucratic regulation, or even to overturn a longstanding judicial precedent), they are constrained by the method of their selection in a manner which prevents them from executing that authority. Judges or justices that are elected by the public or appointed by either the executive or the legislature for limited terms necessarily face reelection, causing these judges or justices to be dependent on those bodies for the continuance of their career. Thus, judicial activism is a phenomenon which almost exclusively occurs at the federal level where judges and justices have lifetime tenure after being appointed by the president and confirmed by the Senate.

As a result, the structure of the federal judiciary deserves some discussion before returning to this essay’s examination of judicial activism. The federal court system has three levels: the district level, the circuit or appellate level, and the Supreme Court. The first two are created by Congress while the Supreme Court was established by Article III of the United States Constitution. The Supreme Court possesses original jurisdiction on a few limited matters, so most federal cases begin at the district court level. The district courts are trial courts whose primary job is fact-finding – that is, determining all relevant information relating to a legal question, whether criminal or civil. District court judges then render a decision based on the facts of the case in accordance with the statute or constitutional principle in question and with relevant case law – that is, legal principles set forth by the outcomes of previous court cases. Case law is a form of public policy which directs how future cases should be addressed by later courts (e.g., whether a certain kind of law should or should not be overturned, how it should be interpreted, etc.). “Statutory law,” in turn, refers to the law as outlined by statutes.

The circuit appellate level of the federal judiciary is immediately above the district level, which reviews the rulings of district court cases and determines if they were reached in accordance with US and constitutional law – meaning, ultimately, whether the district court followed the law in reaching its conclusion. If so, the district court’s ruling would be affirmed. If not, the circuit court can overturn the ruling or a portion of it and/or remand it to the lower court.

At the head of the federal judiciary (and thus, America’s judiciary as a whole) is the US Supreme Court. The Supreme Court is the final court of appeal for any case, hearing approximately eighty cases of thousands each year. Most usually, the Supreme Court hears cases involving a constitutional question, especially when lower appellate courts have produced conflicting rulings on the same issue. The Supreme Court resolves these issues, clarifies constitutional principles, and produces case law which directs the way in which lower courts should produce rulings on like cases in future. Though the lower courts (more the appellate courts than the district courts, since district courts deal more with the application of statutory law) can produce case law, case law produced by the Supreme Court supersedes that of the lower courts.

The federal judiciary has the authority, as recognized in Marbury v. Madison (1803) to invalidate statutes which conflict with the Constitution of the United States.[6] If ever Congress passes a law contrary to the Constitution, the federal judiciary may declare the laws null and void (provided a case is brought before the judiciary which allows it to do so). As Alexander Hamilton noted in The Federalist, No. 78, the judiciary is the weakest of the federal branches as it has no control over either the “sword” (which belongs to the executive) or the “purse” (which belongs to Congress).[7] The federal judiciary consequently relies on the other two branches to enforce its rulings. The judiciary’s chief power rests, as mentioned, in the production of case law. Normative considerations regarding the correct role of the judiciary, therefore, deal with what kind of case law the court should produce, as it has no other policymaking authority available to it.

As such, return to examining the role of judicial activism in judicial policymaking. Sowell makes a strong case for judicial originalism in a number of his works,[8] but as the courts are political institutions (with judges being either elected by the public or appointed by the other branches), a judge cannot employ originalism in his rulings without the decision to do so being political in nature – how he believes the courts should interpret the law is, itself, a political prescription. In sum, how a judge or justice interprets statutes and the Constitution is a political, philosophical decision at the fundamental level (especially given that the Constitution does not offer instruction on how it should be interpreted, a problem in and of itself), so declaring a judge to be a “judicial activist” on the basis of whether he employs his own ideology in the interpretation of the law would place all judges under the same term, rendering it impotent in intellectual discussions (though some make the case that it is already irreparably useless[9]).[10]

Instead, a judicially active judge is one who, whatever his political and philosophical perspective, overturns legislation, regulations, and executive orders enacted by the other branches of government or, in some cases, case law from earlier judicial decisions[11] (though this is a different form of judicial activism and will be addressed later). Judicial activism is not unique to any particular political ideology, nor are there any moral evaluations attached to the concept – meaning, whether a judge was correct or incorrect in his decision is irrelevant as to whether his ruling as “active” or “restrained.” As an example, the ruling in Lochner v. New York (1905) exemplified right-leaning activism on the part of Justice Rufus Peckham in striking down the New York Bakeshop Act of 1895 and recognizing the right to contract under the Fourteenth Amendment,[12] while Justice Oliver Wendell Holmes (upon whose rulings Dr. Sowell tends to look favorably) offered a dissent in favor of judicial restraint, arguing that deference should be granted by the Supreme Court to the state legislature.[13] Similarly, Chief Justice John Roberts’s decision in National Federation of Independent Business v. Sebelius (2012) to uphold much of Obamacare was an act of judicial restraint, while the dissents of Justices Scalia, Alito, Kennedy, and Thomas were examples of judicial activism.[14] The dissenters were activists due to their willingness to assert judicial authority to overturn a statute produced by Congress, while the majority was restrained and maintained that Congress possessed the constitutional authority to pass such an act. Note that in both cases, the activists were those willing to overturn a statute from the legislative branch.

Courts invariably produce public policy – the simple ability to render judgments, declare policies either constitutional or unconstitutional, and to assign remedies in cases is itself a form of policymaking which manifests itself in case law. Thus, judicial activism and restraint refer to the extent to which judges or justices set public policy, or, more appropriately, the extent to which judges or justices believe they should be setting public policy. Far from being a separate phenomenon from the jurisprudential perspective of the judges or justices producing the decisions, a judge or justice’s decision to be active or restrained is central to his judicial philosophy – should the legislature (by nature, a more “democratic” branch than the federal judiciary) be granted constitutional deference, or should a judge override the legislature’s interpretation of its own constitutional powers and substitute it with his own? Should the judiciary merely interpret the direction of public policy being pursued by its sister branches of government, or should it endeavor to direct public policy itself? Though the judicial idealists (this author included) will argue that such questions ought to be irrelevant and that the courts should strike down any law (including overturning faulty case law) contrary to the Constitution, the judiciary’s role in public policymaking is an inseparable facet of constitutional interpretation. The Constitution and the several constitutions of the states outline the powers granted to the legislative and executive branches, but the latitude a judge believes these branches should be given in determining the extent of their own powers varies depending on the active or restrained nature of a judge’s jurisprudence.

So in returning to the original normative of question of, “What should the role of the judiciary be in American government?” let us examine the answer in the limited context of judicial activism versus judicial restraint. First, blanket statements declaring that judges should always be restrained or active ought to be discarded. The judiciary certainly should not grant universal deference to its sister branches of government, but neither should it constantly supplant them, becoming both legislature and executive in its own right to satiate fleeting political whims. The question, then, is not whether judges should be judicial activists, but when they should be judicially active and when they should be restrained.

The answer is two-pronged. The first is enumerated in the Constitution itself:

“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; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”[15]

The Supremacy Clause declares that the United States Constitution is the ultimate legal authority, and that federal statutes and treaties – pursuant to the federal government’s constitutionally authorized powers – supersede state laws and constitutions to the contrary. The Civil War Amendments and others modified these powers, such as by making federal citizenship superior to state citizenship, and thus the “privileges and immunities” guaranteed by the United States (i.e. the Bill of Rights) superior to state law. Ultimately, judges and justices must base their decisions regarding the constitutionality of a law on the Constitution.

The judicial branch, like the legislative and executive branches, must be bound by the Constitution. Where the Constitution errs, it is better that the courts err with it than to render the entire document useless through judicial whim-worshipping. Such would more likely subject the United States to the oligarchy of nine men in robes and their subordinates who, by the stroke of their pens, determine what is and is not the law. No matter how perverse their interpretation of the Constitution may be, judges must base their rulings on the Constitution (or on the law/treaty in question, where they are legitimate) – e.g., the Supreme Court may not overrule the First Amendment and allow for the creation of a “national religion” by Congress regardless of the justices’ personal dispositions, as the Establishment Clause expressly forbids it. In essence, whether a judge or justice decides to be active or restrained should rest on whether the legislation in question adheres to the principles of the Constitution. If it does not, the law should be struck down. Period. If it does, then it should be upheld, even if the legislation itself is poor – unless it is poor to the extent that it is indeterminate whether it is constitutional or not, as its true meaning cannot be gleaned from the text of the law due to ambiguities and contradictions, in which case it ought to be overturned rather than having judges and justices, however intelligent, assign to the law a meaning its text does not clearly hold on its own merits.

Yet how is this to be done accurately without a proper methodology to interpret the Constitution? How can a judge expect to strike down all policies contrary to the principles of the Constitution without being able to identify what those principles are?  This is Dr. Sowell’s forte: originalism.

Originalism (often used interchangeably with “textualism” by the likes of Justice Antonin Scalia and others[16]) is the jurisprudential doctrine which interprets the law based on the plain, original meaning of the text. Originalism rejects “evolving” standards of constitutional interpretation, instead arguing that the text of the law should be interpreted as it was understood in the time it was penned. This gives judges the same epistemic bedrock from which to proceed in drafting their opinions, whereas without such a basis, interpretations become fluid and subject to political whim.

Note that originalism does not mean that the law should be interpreted as it was originally “meant” to be understood – a judicial concept known as “legislative intent.”[17] Rather, the law says what it says regardless of what the authors intended it to say. For example, while the legislators who drafted the Fourteenth Amendment may not have intended the Due Process and Equal Protection Clauses to apply to public schools (which ought not to exist in the first place), as evidenced by the fact that Washington, D.C. under Congress’s legislative control had segregated schools at the time, it was nevertheless clear to the Supreme Court in Brown v. Board of Education (1954) that the Equal Protection Clause was explicit in its meaning: “No state shall… deny to any person under its jurisdiction the equal protection under the laws.”[18] This also forbids, as the words in their contextual, historical meanings convey, laws which treat individuals differently based on their race (or color, or creed, or sex, etc.). As another example, though the Framers of the Constitution may not have intended the Due Process Clause in the Fifth Amendment to forbid segregation at the federal level, it nevertheless does as the Brown Court decided in Bolling v. Sharpe (1954) in striking down school segregation in Washington, D.C.[19] “Due process of law,” in its contextual, historical meaning, is not possible should the law be unequally applied. And so, even some of the most notable rulings in favor of individual rights and equal treatment before the law in the United States are justified in an originalist context.

Note also that originalism is not the same as parsing out every possible definition of a word and then picking the one that a judge finds most expedient or most similar to the intent of the legislature. Rather, it understands the words of the law in their existing contexts and gives “nontechnical words and phrases” their ordinary meaning, as Justice Scalia explains in his dissent in Smith v. United States (1993).[20] The law in question had Smith charged for the “use of a firearm” during drug trafficking, though Smith only “used” his gun (unloaded) to barter for cocaine. Though the law did not specify that the charge only applied to a firearm’s use “as a weapon,” Justice Scalia found the words “reasonably implicit” given the widespread connotation of “using a firearm” to “using it as a weapon” in American English. He quips in his dissent:

“To use an instrumentality ordinarily means to use it for its intended purpose. When someone asks ‘Do you use a cane?’ he is not inquiring whether you have your grandfather’s silver handled walking stick on display in the hall; he wants to know whether you walk with a cane.”[21]

To sum up the proper amount of judicial activism in which a judge should participate, the best phrase available is that he should be a “constitutional activist” or, more appropriately, an “originalist activist.” As I stated in my rejection of Newt Gingrich’s chimeric fear of a “judicial dictatorship”:

“[T]he greatest threat the judicial system poses to individual liberty arises through the neglect of its actual responsibility: serving as an impartial arbiter between the political branches of the government and the people, the ultimate guardians of the Constitution, if and when the people forget the importance of their own liberty.”[22]

Yet even with an attitude of originalist activism, a judge would struggle to interpret various aspects of the law. The Ninth Amendment, in particular, is perhaps the most ambiguous portion of the United States Constitution, even more than the Commerce Clause (which under originalist interpretation in the context of the Fifth Amendment’s Due Process Clause would be far more limited). The Founders included the Ninth Amendment to ensure that all rights not enumerated in the Constitution by the Bill of Rights are still protected, yet what are these rights? To be sure, the language used by those who drafted the Ninth Amendment is such that it protects the sum of man’s rights, whatever they are irrespective of even the philosophies of those who wrote it. This is where the need for a rational philosophy becomes paramount. Though the Founders likely did not envision rights such as the “right to contract” constitutionalized by Justice Peckham, these rights nevertheless exist, and while the original meaning of the Ninth Amendment protects them all, it falls on the modern judiciary to identify them. This must be done through a rational consideration of moral and legal philosophy; and so, a rational philosophy is necessary.

Until such a time as the Constitution is perfected and a capitalist form of government is made the law of the land (i.e., so rationally and so explicitly outlined that only extreme philosophic corruption on the part of all branches of government could misinterpret and sully it), then the need for philosopher-judges in the judiciary will be necessary to protect man’s rights where the law itself does not do so explicitly. Once capitalism is constitutionalized, the judiciary will no longer need great metaphysicians and ethicists (though it would certainly still benefit from them) as it does now, and will require only a few honest individuals to read, interpret, and administer the law as it is.

Still, capitalism is not constitutionalized,[23] and there exists libraries full of case law – some based on a rational interpretation of the Constitution, and some not. It should go without saying that when this essay asserts that judges should be activists in overturning any statute which conflicts with constitutional principles, it refers only to the constitutional principles outlined by good case law. If a statute is permissible through a rational interpretation of the Constitution but current precedent does not allow it, the judges or justices hearing the case should be active, not in overturning the statute, but in overturning the case law. If the statute is poor but the case law is good, then the first requires judicial activism and the second requires judicial restraint. If both the statute and case law is poor, than the judges or justices hearing the case should be doubly active and overturn both, replacing the poor case law with a rational alternative. This was the meaning of the earlier point that activism as it relates to overturning case law is different than activism as it relates to statutes: both involve overturning existing law, but they are separate from one another – activism in one does not necessitate activism in the other, and the same with restraint.

Given the current state of much of US case law, specifically on issues regarding economic liberties, a restrained judiciary is often more pernicious to man’s individual rights and the integrity of the Constitution than activism, as it upholds both poor precedents and the laws that follow from them. The damage that can be rendered by men like Chief Justice John Roberts in exhibiting restraint by upholding both poor statutes and poor precedents alike is readily apparent. It needs more men like Justice Clarence Thomas who are willing to, in no uncertain terms, reject both the law and the decades of poor precedent on which it rests in favor of a proper interpretation of the Constitution.[24] More than that, though, America needs rational men and women on the bench. If that is achieved, all else will follow.


[1]. Caprice L. Roberts, “In Search of Judicial Activism: Dangers in Quantifying the Qualitative,” Tennessee Law Review 74, 2007, 6-7, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1003542 (accessed 16 May 2013).

[2]. Thomas Sowell, Compassion Versus Guilt, And Other Essays (New York: William Morrow & Co., 1989), http://youtu.be/jW-HJ9nRwhs (accessed 9 May 2013).

[3]. Roberts, “In Search of Judicial Activism,” 4.

[4]. Ibid., 5.

[5]. Dr. Sowell’s other writings – past and present – exhibit a full awareness that even originalist judges and justices must be “active” through striking down statutory law contrary to the original meaning (he calls it “original intent,” a problem in and of itself) of constitutional law. Even so, he insists that the term “judicial activism” should not be used in such cases, as he considers the broader adherence to original constitutional principles to be “judicial restraint.” Thus, it is not Dr. Sowell’s overarching jurisprudential argument with which I disagree – indeed, I find his contention that originalist judges ought to be “active” in striking down unconstitutional laws to be wholly sound. Rather, it is the language he uses that needs correction, as its current form (i.e., arguing that judges and justices should be “restrained,” but that “restrained” judges and justices must simultaneously be “active” in a particular sense) reduces the clarity of his truly cogent point; see, e.g., Thomas Sowell, “Judicial Activism Reconsidered,” 1989, http://www.tsowell.com/judicial.htm (accessed 17 May 2013); see also Thomas Sowell, “Intellectuals and the Law,” Intellectuals and Society (New York: Basic Books, 2009), 170 (“[S]ince the judge who believes in judicial restraint makes the existing law the paramount consideration in deciding cases, that often means that such a judge must be active in striking down new laws which violate the restrictions of the Constitution, which is “the supreme law of the land.” In short, activity is not what distinguishes the judicial activist from the practitioner of judicial restraint…).

[6]. Marbury v. Madison, 5 U.S. 137 (1803).

[7]. Alexander Hamilton, “The Federalist No. 78,” 28 May 1788, in The Federalist Papers (New York: Bantam Dell, 2003), 472.

[8]. See, e.g., Thomas Sowell, “Intellectuals and the Law,” Intellectuals and Society (New York: Basic Books, 2009), 157-202.

[9]. Roberts, “In Search of Judicial Activism,” 4.

[10]. Note that in cases involving constitutional law, the over two hundred year existence of the Constitution has produced case law on virtually every caveat of constitutional interpretation. As a result, all cases involving constitutional principles must follow, distinguish themselves from, or overturn the case law from prior cases. How they do this is, again, dependent on the judge’s ideology on the bench.

[11]. See, e.g., Brown v. Board of Education 347 U.S. 483 (1954) (overturning case law from Plessy v. Ferguson, 163 U.S. 537 (1896) and declaring “separate educational facilities are inherently unequal”).

[12]. See Brian Underwood, “Capitalism in American: Lochner v. New York (1905) and the Right to Contract,” The Mendenhall, 9 Dec. 2012, http://themendenhall.com/2011/12/09/lochner-v-new-york/ (accessed 17 May 2012).

[13]. In the defense of Justice Holmes and Dr. Sowell’s appreciation of him, Justice Holmes did vote in an activist manner to protect Benjamin Gitlow’s First Amendment speech rights in 1925, and Justice Peckham voted in a restrained manner which violated the Fourteenth Amendment rights of Homer Plessy in 1896, demonstrating how neither Justice Holmes nor Justice Peckham practiced a consistently rational or irrational judicial philosophy while on the bench; see respectively, Gitlow v. New York 268 U.S. 652 (1925); and, Plessy v. Ferguson 163 U.S. 537 (1896).

[14]. See Brian Underwood, “What Went Wrong: Why the Court Upheld Obamacare,” The Mendenhall, 29 June 2012, http://themendenhall.com/2012/06/29/what-went-wrong-why-the-court-upheld-obamacare/ (accessed 17 May 2013); see also Slade Mendenhall, “Three Thoughts on the Obamacare Ruling,” The Mendenhall, 28 June 2012, http://themendenhall.com/2012/06/28/three-thoughts-on-the-obamacare-ruling/ (accessed 17 May 2013).

[15]. U.S. Const. art. VI, cl. 2.

[16]. Allen P. Mendenhall, “The Law is Above the Lawyers,” The Mendenhall, 17 May 2013, footnote, http://themendenhall.com/2013/05/16/the-law-is-above-the-lawyers/ (accessed 17 May 2013).

[17]. Here, again, is my issue with Dr. Sowell’s use of the phrase “original intent” to refer to originalism. Though he defines “original intent” as the original “cognitive meaning” of the text of the law, per originalist jurisprudence, he must unnecessarily redefine the word “intent” as something which does not refer to the motivations or aspirations of the legislators drafting the law, as it is most commonly employed; see, e.g., Thomas Sowell, “Judicial Activism Reconsidered,” 1989, par. 21, http://www.tsowell.com/judicial.htm (accessed 17 May 2013).

[18]. U.S. Const. am. 14, cl. 1.; Brown v. Board of Education, 347 U.S. 483 (1954).

[19]. Bolling v. Sharpe, 347 U.S. 497 (1954).

[20]. Smith v. United States, 508 U.S. 223 (1993).

[21]. Ibid.

[22]. Brian Underwood, “Challenging Prof. Gingrich,” The Mendenhall, 26 Dec. 2011, par. 20, http://themendenhall.com/2011/12/26/challenging-professor-gingrich/ (accessed 17 May 2013).

[23]. See Brian Underwood, “Our Imperfect Union,” The Mendenhall, 9 January 2012, http://themendenhall.com/2012/01/09/our-imperfect-union/ (accessed 17 May 2013).

[24]. National Federation of Independent Business v. Sebelius, 567 U.S. ___ (2012).


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