Judicial Activism

Judicial activism is a legal term that refers to court rulings that are partially or fully based on the judge’s political or personal considerations, rather than existing laws. In basic terms, judicial activism occurs when a judge presiding over a case allows his personal or political views to guide his decision when rendering judgment on a case. The topic of judicial activism has been a source of controversy in the U.S. political landscape for some time. To explore this concept, consider the following judicial activism definition.

Definition of Judicial Activism


  1. Court rulings made based on political or personal views of the judges presiding over the case.


January 1947    Fortune Magazine article by Arthur Schlesinger, Jr

History of Judicial Activism

The exact history of judicial activism is unclear, but it is believed that the concept has been around for centuries. However, a man named Arthur Schlesinger, Jr. brought about the term judicial activism in 1947. Schlesinger was a specialist in American History, and was well known for his study of 20th century American Liberalism.

Schlesinger introduced the term in a Fortune Magazine article published that year entitled “The Supreme Court: 1947.” In the article, Schlesinger grouped the courts into three categories: (1) judicial activists, (2) champions of self-restraint, and (3) a middle group.

Since the term first hit the political-judicial stage, it has been a point of controversy. This is especially interesting, as Schlesinger never truly defined the term. Since the term’s inception, there have been varying opinions on what the term judicial activism truly means.

Law professor and leading constitutional scholar, David A. Strauss, has offered his opinion that judicial activism can take at least three forms. These include:

  1. The act of overturning laws as unconstitutional
  2. Overruling judicial precedent
  3. Ruling contrary to a previously issued constitutional interpretation

A good example of the history of judicial activism is the 1954 case of Brown v. Board of Education. In 1951, a group of parents, on behalf of their children, filed a lawsuit against the Board of Education of the City of Topeka, Kansas. The parents had attempted to enroll their African-American children in the closest neighborhood school that year, but were refused enrollment. The suit requested that the school district reverse its policy of racial segregation, in which the district operated separate schools for black and white children. The plaintiffs in the case claimed that racial segregation resulted in inferior facilities, accommodations, and treatment of their children.

The District Court ruled in favor of the Board of Education, based on the prior ruling of Plessy v. Ferguson, a case that upheld state laws requiring segregated transportation on trains. When the parents appealed their case to the U.S. Supreme Court, the Court ruled that segregation of whites and blacks in school was indeed unconstitutional, as it was harmful to black students.

This ruling flew in the face of the legal doctrine of stare decisis, which requires judges to uphold prior rulings of higher courts. This is also referred to as “case precedent.” In this case, rather than relying on the ruling in Plessy v. Ferguson, which was a similar case, the Supreme Court overruled it.

This ruling on desegregation of public schools came with considerable resistance, as opponents of the ruling believed that the Court had relied on statistics and social theories, rather than on established law. This meant to them that the Supreme Court Justices had acted outside of its powers by creating new law. Supporters of the decision believed, on the other hand, that the court’s exercising of judicial activism was appropriate. They argued that the court should use its power to adapt existing laws to address problems in current society.

Toward the end of the 20th century, the U.S. Supreme Court was seen as a powerful judicial body exercising greater activism than ever before. Conservatives criticized many of the justices, claiming they struck down many state and federal laws based on their own liberal political beliefs. The history of judicial activism shows us however, that both liberals and conservatives are known to take part in, and benefitting from the practice, while accusing the other group of doing so.

What is Judicial Activism

The judicial system in the United States is a system that provides courts with the power and authority to administer justice, though that justice must be within the bounds of the law. As some laws in the U.S. tend to be ambiguous, or lacking in specific direction as applied to a particular case, the court system is also responsible for interpreting the laws, and ensuring they are applied correctly on both the state and federal levels.

While the judicial system is not authorized by the U.S. Constitution to make laws, it applies the facts of each case to the existing laws in order to reach a decision that ensures justice is served. In some cases, the court is required to make a decision about how a law should be applied to the particular circumstances in reaching its decision. When such decisions are made by higher courts, such as appellate courts and supreme courts, they become what is referred to as “binding precedent,” which means that other courts must use the interpretation of law of that higher court on future similar cases.

When a court does not confine its rulings to interpretations of the law that other reasonable judges would make, it may be seen as creating law from the bench, rather than applying existing laws. Similarly, judicial activism is sometimes seen in the form of making a ruling on an issue that is not specifically brought to the court in a present case.

For example:

Louanne and Chuck have an existing child custody and child support order that was issued when they divorced five years ago. Louanne, who has custody of the children every day, save for the two weekends a month they visit their father, applies to the court for an order increasing the child support amount.

When the case goes before the court, the issue that is to be considered by the judge is whether or not an increase in child support is appropriate when using the mandated formula for child support calculations. This is based on the percentage of time each parent has with the children, as well as each parent’s gross income, and tax status.

Judge Jones, who pays a hefty amount of child support himself, decides that the father should have more time with his children. He changes the child custody order to give the father every weekend, as well as one day each week, and denies the mother’s request for increased child support.

In this example of judicial activism, the judge has made a ruling based on his personal opinion or feelings. He disregarded the usual process for determining child custody, which involves an investigation into what custody arrangements will be in the best interests of the child.

Louanne has the right to appeal the decision on the basis that it was inappropriate for the court to make such a change to custody, and therefore to deny the request for a modification to the child support order. There is a good chance the appellate court would agree, and return the case to the family court for the proper actions to be taken.

Some people view judicial activism as an opportunity for proactive judges to correct certain legal injustices, and to establish public policy that better serves the needs of modern-day society. Other people see it as a way for certain political groups to, through judicial activism by sympathetic judges, avoid the legislative process for creating laws, which enables them to bypass public opinion. In such a case, the concern is that judicial activism overturns or ignores existing laws, which damages the democratic rule of law.

Judicial Restraint

Judicial restraint is commonly considered to be the opposite of judicial activism. Judicial restraint embraces the belief that judges should narrowly interpret existing law and constitutional interpretations, adhering to prior interpretations or congressional acts in making decisions. When exercising judicial restraint, judges refrain from exercising their powers to make judgments based on their own personal or political views. The goal of judicial restraint is largely to maintain a balance within the governmental branches.

Example of Judicial Activism

Every day, judges at every level of the U.S. legal system have to make difficult decisions in a wide variety of cases. This necessitates a balancing act of interpreting existing law, referring to existing case precedent, and ensuring that justice is brought in each individual case. Many judges feel that some laws, include case precedent, need to be updated to better suit modern social structure. Taking on this responsibility, by interpreting and applying the law differently, or even by sidestepping the law entirely, amounts to judicial activism.

Federal Sentencing for Drug Convictions is Example of Judicial Activism

Before August 2010, a defendant convicted of possessing 5 grams of crack cocaine, with the intent to distribute, faced a mandatory five-year prison sentence. On the other hand, the same person possessing 500 grams of powder cocaine, with the intent to distribute, faced the same mandatory sentence according to federal law. In 2010, however, Congress passed the Fair Sentencing Act, which reduced the disparity between convictions for possession of crack cocaine and powder cocaine, to ensure more fair sentencing.

It is known that the chemical composition of the drug is the same, regardless of its form. It is also widespread knowledge that the majority of offenders receiving maximum penalties for possession of crack cocaine are African American.  In 2012, the Supreme Court ruled that the Fair Sentencing Act applied to any sentences imposed after it was passed in August 2010, even if the charges were made before that date.

Shortly after that, two people who were convicted and sentenced prior to the August 2010 effective date of the Act, filed suit in the U.S. Court of Appeals for the Sixth Circuit. These defendants, in the case of United States v. Blewett, claimed that the new sentencing guidelines should apply to all defendants sentenced under the mandatory minimum sentences for crack and powder cocaine crimes, regardless of the date  of sentencing.

The three-judge panel of the appellate court, after engaging in their own fact-finding mission, declared that the new mandatory sentencing should apply to all offenders previously sentenced for these crimes. This ruling came was made on the belief that the prior application of law constituted racial discrimination under the federal Equal Protection Clause, contained in the Fourteenth Amendment to the U.S. Constitution.

Related Legal Terms and Issues

  • Authority – The right or power to make decisions, to give orders, or to control something or someone.
  • Congress – The legislative branch of the United States federal government, composed of the House of Representatives and the Senate.
  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Discrimination – The practice of unfairly treating different categories of people, especially on the grounds of ethnicity, national origin, gender, race, religion, and sexual orientation.
  • Equal Protection ClauseA clause in the Fourteenth Amendment to the United States Constitution that declares that no state shall deny to any person within its jurisdiction “the equal protection of the laws.”
  • Hearing – A proceeding before the court at which an issue of fact or law is heard, evidence presented, and a decision made.
  • Judgment – A formal decision made by a court in a lawsuit.
  • Legal doctrine – A set of rules or procedures used to make decisions in court cases. Doctrine is often established through precedent, or prior rulings on similar cases.
  • Precedent – An earlier event or case ruling that is used as an example or guide for future court case rulings in similar circumstances.
  • Stare Decisis – A legal principle when points in litigation are based on precedent.