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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About Adam Lee

Adam Lee is an atheist writer and speaker living in New York City. His new novel, Arc of Fire, is available in paperback and e-book. Read his full bio, or follow him on Twitter.


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