In Praise of Judicial Activism

In Federalist no.10, James Madison wrote a famous passage about how a democratic republic must watch for the danger of becoming a “dictatorship of the majority”:

Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.

A democratic government is a major step forward over monarchy and other forms of dictatorship, but it isn’t a panacea. For an unpopular group unfairly oppressed by the state, it scarcely matters if the source of oppression is a dictator or a mob. For atheists, this truth should hold special resonance, considering how many fundamentalist groups would love the chance to bar us from civic life. Fortunately, America’s founders recognized this problem and set out to frame a truly just society in which dissenting voices had a chance to be heard.

How to achieve this end? America’s solution was to divide the powers of government among three branches, and to create an independent judiciary, insulated from the vicissitudes of popular passion, that could check the other branches by nullifying any act which violated constitutional guarantees of equal rights for minorities.

Contrary to certain right-wing pundits, this was the design from the beginning. Consider Alexander Hamilton and Federalist no.78:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority… Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Conservative politicians and demagogues endlessly bemoan “judicial activism”, which they take to be the courts overstepping their authority and striking down popular, widely-desired laws. But just because a law is popular does not mean it obeys the limits which the Constitution places on government power. To the contrary, many of the laws desired by the American right – official state endorsement of their religious beliefs, legalized discrimination against gays and other minorities, a government that invades the privacy of its citizens and monitors their personal lives – constitute precisely the kind of mob majoritarianism which the founders were afraid of. The judicial branch was created to thwart the very kind of takeover that the right wing desires. When they complain that the deck is stacked against them and the courts treat them unfairly, what they are really complaining about is that the American political system has repelled their autocratic aims precisely as it was designed to do.

Some landmark court cases from American history show very well why the judicial branch is needed. Consider some of the familiar and fundamental guarantees of liberty, now taken for granted, that were originally won only through court decision:

  • Evidence obtained illegally may not be used at trial (Weeks v. United States, 1914; Mapp v. Ohio, 1961)
  • State governments prohibited from abridging freedom of speech (Gitlow v. New York, 1925)
  • The state may not deliberately exclude minorities from juries (Patterson v. Alabama, 1935)
  • Students may not be forced to salute the flag (West Virginia State Board of Education v. Barnette, 1943)
  • The state may not outlaw films deemed “sacrilegious” (Burstyn v. Wilson, 1952)
  • Ending racial segregation in public schools (Brown v. Board of Education, 1954)
  • All people charged with crimes have the right to a defense lawyer (Gideon v. Wainwright, 1963)
  • Adults have the right to purchase and use birth control (Griswold v. Connecticut, 1965)
  • People must be read their rights when arrested (Miranda v. Arizona, 1966)
  • The state may not outlaw interracial marriage (Loving v. Virginia, 1967)
  • Students have the right to stage peaceful political protests (Tinker v. Des Moines, 1969)

These precedents, and many more like them, all struck down laws that most people of today would justly find outrageous. If we had not had a judicial branch to nullify laws that violate the rights of minorities, American legal and social progress as a whole would be greatly set back, and many egregious legal evils would persist.

I grant that, in some of these cases, progress in society’s attitudes might eventually have achieved the same result in the end. But even under the best assumptions, that is a slow, imperfect and faulty method of delivering justice, and some of these laws might still be in force today. In many cases, it can be argued that the courts’ decisions striking down invalid laws were themselves the catalysts for meaningful societal change.

If a judge’s decision is bad – if it is poorly reasoned or in conflict with the Constitution – then it can be criticized on those grounds. But to raise the complaint of “judicial activism” is a meaningless whine, indicating nothing other than that the speaker disagrees with the decision. In most cases, it’s just a plea by the advocates of unconstitutional, anti-American laws and policies that the judicial branch not examine their conduct too closely.

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  • hb531

    McCain is all about fighting activist judges. He likes to use the catch phrase “legislating from the bench” in at least one of his issues pages.

    As president, John McCain would nominate judges who understand that the role of the Court is not to subvert the rights of the people by legislating from the bench.

    So McCain understands the role of the courts?! He could probably use a refresher course in the Federalist Papers (not to mention geography). Sounds to me like this is a way of saying “Hey, these judges don’t think like me, so they must be wrong and/or bad for the country”. This guy wants to be president?

  • David D.G.

    I’m surprised that you didn’t also list Roe vs. Wade. The right to legal and safe medical services for women, including abortion, was another case that helped to properly empower a minority whose rights had been summarily blocked in the name of “morality.” And more recently, the overturning of the Texas sodomy laws (sorry, I don’t know the case name) was another refreshingly welcome ruling.

    ~David D.G.

  • David D.G.

    I just realized that my previous post might come across as critical, implying oversights on your part — definitely not my intention. I was just moved to add my $0.02 worth to the fine list you had already provided.

    This is an excellent post, nicely explicating the nature and proper role of the judiciary, and beautifully deflating that shrill mantra of “judicial activism.” Keep up the good work!

    ~David D.G.

  • LindaJoy

    Very good post, Ebon. Madison worried about the rights of the minority all the time. That’s why he said the a taxpayer should not have to forfeit even three pence towards the support in any fashion of a religion that goes against his conscience. Now we have the White House Office of Faith-Based Initiatives that has taken over $65 billion of our tax dollars and given it to programs that use it for outright proselytizing. On top of that, Bush gave an Executive Order that allows these programs to discriminate in their hiring. Our illustrious Supreme Court, who obviously have put Madison out of their minds, ruled in Hein v. FFRF that the taxpayer has no rights to protest his money being spent on these programs because the funding was not directly flowing from Congress. It went from Congress to the Executive Branch as general expenditure monies and then the faith based money was carved out of that. This current Supreme Court is a disaster when it comes to the very issue you raised about the rights of the minority. I am sure there will be more propping up of the Christian majority before this court is through.

  • YAAB

    When this complaint comes from the Religious Right, it is actually more astute than they realize, because many of their gripes fundamentally boil down to opposition to our godless Consitution. Therefore, even if they don’t say it aloud, a constitutional democracy functioning “as designed” must be a bad thing in many ways. Huckabee’s ill-phrased promise to re-write the Constitution to reflect “god’s law” stated this objection explicitly.

  • LindaJoy

    A major proof that the Constitution was written as a secular document is found in the writings of strict religionists of the times who were appalled that God and Jesus weren’t mentioned in the preamble. A group of them wrote to Washington about it and he put them off very diplomatically. The real “miracle” in Philadelphia that summer at the Constitutional Convention was that a group of mostly religious men managed to step back and write something so secular. There were state constitutions and colony charters all around them that smacked of theocracy and Christian favoritism and they rejected all those models (VA being the only good model at that time).

    The religionists did not give up after the Constitution. There was a major push again in the late 1800′s to put Jesus in the preamble, but it failed. So every so many years, we get this push again. Right now it’s in the form of House Res. 888 which uses the distortion and lying about our history tact to push Christianity in. It’s sitting in committee, but if it comes out, the sponsors hope to pass it and then use Congressional approval to make it legitimate to push these lies into our school curriculums. They never give up.

  • WayneC

    After a recent week on jury duty, I happened to stumble across the great power of “jury nullification.” A dangerous term, because just mentioning it within earshot of the courthouse can get you a contempt of court charge in two seconds flat. However, a lot of the laws that were eventually nullified by “activist” judges (shouldn’t they all be?) were thrown out multiple times by intelligent juries before the courts or the Congress realized their injustice. Although all the judicial rulings on jury nullification have upheld this as a right of all juries, many state rulings have also made it criminal for judges, defense attorneys, or prosecutors to mention such heresy in court. Even mentioning the term in the jury room during deliberations can be used as a basis for the judge to call a mistrial.

    One brave lady in Arizona got word through a pamphlet to the jury in her son’s drug trial about jury nullification, and was rewarded for her efforts by being charged with obstruction of justice and jury tampering. However, the charges were soon dropped, probably because the prosecutors couldn’t think of any way to try her without giving the jury hearing her case a copy of the jury nullification booklet!

    Still, any jury has the power to completely ignore written laws or court proceedings if they believe that justice will not be done by convicting someone of minor drug possession, etc. Juries can disregard the hollow “oath” they give at the beginning of jury service, the judge’s instructions about the law, and even solid, iron-clad evidence if they believe that justice would not be served in a conviction.

    There are many great expansions of the idea of jury nullification at Web sites such as and

    Sadly, with my week of jury duty we saw no cases, with every defendant making a plea-bargain. I was impressed, though, that one of the two judges who instructed us did say, “I don’t want anyone innocent of a crime to plead ‘guilty’ in my courtroom.” I hadn’t expected to hear that from any jurist, and it gave me a little hope that maybe a small amount justice may be meted out now and then in our county courtrooms.

  • Ebonmuse

    David D.G.: When it comes to the courts safeguarding liberty, I do consider Roe v. Wade and, especially, Lawrence v. Texas to be court decisions on a par with anything I’ve discussed here. Both of them, especially the latter, established that there is indeed such a thing as a constitutional right to privacy and freedom from arbitrary state intervention. I think the implications of that are going to be huge.

    The thing is, most of the right-wing pundits who complain about judicial activism fiercely disagree with both those decisions, so to them, those decisions wouldn’t serve as very persuasive examples of why the judicial branch is needed. I sought to list the decisions which established liberties that even conservatives value, the better to punch holes in the argument that the courts are unneeded usurpers of Americans’ rights.

  • Chris Swanson

    Another great post! The “activist judges” thing has really been irritating the hell out of me over the years. Check out The Appeal by John Grisham for some insight into how the conservatives want things to be.

  • Nurse Ingrid

    To me, the phrase “activist judges” is just like the phrase “states’ rights,” in that I never hear anyone use it unless they’re advocating something I find utterly repugnant.

    And hey, where is the “states’ rights” crowd when it’s time to stand up for the state of California’s right to legalize same sex marriage? Oh, right, they’re trying to amend the federal Constitution so we can’t.

  • the chaplain

    Excellent post. As far as I’m concerned, all the politicians’ prattle about “judicial activism” is hot air. What they are really protesting are jurists who disagree with them. They’re perfectly content, however, to accept the decisions of jurists who agree with them.

  • Ingersoll’s Revenge

    Right now it’s in the form of House Res. 888 which uses the distortion and lying about our history tact to push Christianity in.

    Ugh. Don’t get me started on H. Res. 888.

    The fact (and it’s been reiterated here countless times) that a nation full of Christians is not a Christian nation notwithstanding, H. Res. 888 contains a stunning amount of factual errors regarding the multiple “whereas”es, showing nothing but a complete disdain for historical accuracy and study. I won’t go into detail about them here, as you can look them up on any number of websites by simply running a Google search.

    My congressman, Pat Tiberi (R-OH), is a supporter of the resolution, and I’ve written to him numerous times to remove his name from the list of supporters. I’ve cited the countless factual errors and reminded him that, if nothing else, tacking his name onto that list makes him look like an idiot in the eyes of anyone who has even a smidgen of knowledge about U.S. History (though I used much more subtle language than that).

    Obviously, I’ve never gotten a reply.

  • random guy

    Since its been mentioned, I always thought the state’s rights argument was another kind of tyranny of the majority. It just replaces a national majority with a localized one. Like the idea that segregation should have been a state issue, specifically because local majorities could overrule the rights of a minority. They didn’t want it becoming a federal issue because they didn’t give a damn about New York they just wanted to make sure they didn’t have to share the bus with the black people back in Mississippi.

    Thats one of the reasons I can’t understand the courts reversal on the death penalty issue. I don’t understand how they think its okay for one state to put someone to death if it wants too, but not for another. I understand that its up to the states themselves to decide. I just find it horrific that a crime in Texas could get you killed whereas the same crime somewhere else wouldn’t, it seems like a gross miscarriage of justice to let some states murder citizens with the only real condition being how much the local populace wants to see them dead.

  • LindaJoy

    Ingersoll’s Revenge- Rep. Randy Forbes is getting impatient with House Res. 888 sitting so long in committe, so he had a group take some time on the floor of the House to voice their support (Our Rich History of Faith- June 17, 2008) for about an hour. Those who stood up in support gave little 5 minute speeches that were also chock full of historical errors! I’ve been researching them. Rep. Robin Hayes from NC gave a whopper of a quote supposedly from George Washington that I confimed with the GW Papers foundation is a 19th century faity tale. I intend to send him a letter. I don’t see your rep as one of the speakers. A Congressman Carter from VA got so excited during his oratory that he proclaimed, “The Lord Jesus Christ reigns in the capital city of the United States of American”. These guys don’t give up, so keep your eye on House Res. 888.

  • Samuel Skinner

    Remember- it is only judicial activism when the lefties do it- when the supreme court installs a president it is “rule of law”.