Responsibly Debating the Supreme Court: the Top Ten “Activist” Decisions in Supreme Court History

Too often, social conservatives use the terms “activist judge,” “activist court,” etc., to describe jurists and decisions they simply don’t like. We forget that phrase used to have real meaning. The phrase “activist judge” should only attach to those jurists and decisions that either embrace the use of law as an agent of social change, or break surprisingly with established law.
Properly understood, “judicial activism” is neither liberal nor conservative, nor is it always bad, or at odds with the ideals of the American Constitution. Granted, sometimes it is. Allow me to demonstrate, with this list of the top ten “activist” decisions in Supreme Court history, color-coded for your ease (blue for good, red for bad, purple for problematic).

  1. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803): could Marbury, the defining case of American constitutional law, be anything but #1? In Marbury, the Court claimed for itself the power to both interpret the Constitution, and invalidate those acts of Congress at odds with the document. It invented “judicial review,” a power envisioned for the Court by the Founders, but not explicitly granted in the Constitution. You don’t get more “activist” – or more vital to our liberty – than that.
  2. Brown v. Board of Education, 347 U.S. 483 (1954), and its progeny: in 1953, segregation was the political issue. So when a vacancy opened on the Court that year, just as the Court was considering a segregation case, President Eisenhower made the cowardly-but-prudent decision to appoint a replacement Justice who emphatically would not push the issue! So he picked Earl Warren….Oops. When Warren ascended to the Court, convinced of the unconstitutionality of segregation, he rushed to assemble a unanimous coalition, willing to strike down segregation once and for all. He got it, they handed down the case, and the country flipped out. The Justices received death threats, and the federal government faced organized resistance to the rule of law, both violent and political, from Southern leaders. But the Justices stuck to their guns, handing down case after case supporting desegregation, determined to secure for African Americans that which was rightfully theirs: the equal protection of the laws. It was a brave thing to do. Knowing full well the controversy into which they were stepping, it was an “activist” thing to do. But it was the right thing to do.
  3. Loving v. Virginia, 388 U.S. 1 (1967): fourteen years after Brown, the Court resolved the next great question of racial equality – the right to marry whomever one chooses, regardless of race – and, once more, risked its legitimacy to resolve a vital societal issue. And, in deciding the case, the Court embraced a super-strong definition of equality. Dare we say it – GASP! – made policy?
  4. Scott v. Sanford (“Dred Scott”), 60 U.S. (19 How.) 393 (1857): 100 years prior, we had a very different Supreme Court. When a slave sued his “master,” demanding his freedom, Chief Justice Taney’s Supreme Court waded directly into another social controversy, but this time picked the wrong side, with disastrous consequences for enslaved men and women nationwide. And, to top it off, the Court sua sponte (of its own volition) struck down the Missouri Compromise, nearly igniting the Civil War three years early! This case was so wrong, it took a war and three constitutional amendments (XIII-XV) to fix it. Epoch fail.
  5. Roe v. Wade, 410 U.S. 113 (1973): yes, yes, Rove et al, we agree on something. Roe, while legally right (it’s a natural extension of Griswold), was probably a few years too early. For federal judges, there’s an art to wading into social controversies, even when the law’s on your side. You don’t want to do it too late, but for God’s sake, you don’t want to do it too early. The Justices just miscalculated here because – this is true – they honestly didn’t think it would be controversial.
  6. Gonzales v. Carhart, 550 U.S. 124 (2007): look – I don’t like partial birth abortion either. But as a Supreme Court Justice, you can’t let the government ban the procedure, less than a decade after you told them they can’t! That’s just bad judging, compounded in this case by a horrifically bad, logically inconsistent, and outright deceptive opinion.
  7. Lochner v. New York, 198 U.S. 45 (1905): coming in the middle of the Progressive Era, the Lochner decision was the Court’s desperate attempt to use the Fourteenth Amendment’s Due Process Clause to block legitimate, democratically-implemented legislation aimed at protecting workers from truly heinous working conditions. Who knew that the Constitution recognized a due process right to expose your employees to toxins, regardless of congressional enactments to the contrary?
  8. Bush v. Gore, 531 U.S. 98 (2000): this case was bad. But not why you think. No matter what you think of the result, the Court’s jurisdiction over this case was more than legally suspect, and its equal protection holding was outright wrong. Don’t take my word for it: the Court agrees! Time after time, they’ve declined to cite or acknowledge the principles of Bush v. Gore as good law. This was not law: it was politics. And yet, the decision does at least, positively embrace the Supreme Court’s role as the broker of democracy. Call it a victory for the rule of law, but a defeat for justice.
  9. D.C. v. Heller, 554 U.S. ___ (2008): I’ve said it once, and I’ll say it again: Heller, in which the Supreme Court “found” an individual right to bear arms, subject to reasonable regulation, is a well-balanced and politically neutral opinion. But it’s also consciously political, in selecting which version of American history to credit, and it goes directly against nearly 200 years of American law, all of which rejected an individual right to bear arms. It’s a great compromise opinion, and an excellent brokering of competing political interests, but it is not an example of judicial modesty.
  10. Griswold v. Connecticut, 381 U.S. 479 (1965): do you see the word “privacy” in the Constitution, anywhere? Neither do I. But what do the Third, Fourth, and Fifth Amendments all have in common? They  acknowledge and protect a privacy that the Founders didn’t imagine could be threatened in ways other than those prohibited by the Third, Fourth, and Fifth Amendments. Griswold is the first case to recognize, and “find” in the “penumbras” of other constitutional freedoms, a strong right to privacy. This conclusion is as unsurprising as it is inoffensive: even Sarah Palin recognizes that the Constitution clearly must protect some right to privacy. But this type of creative thinking, as in, reading structure and ideals in the Constitution, rather than just the words on the page, is exactly what (selectively) outrages the right. It’s judicial activism – and we wouldn’t want it any other way.

The next time you hear the phrase “judicial activism,” ask the speaker to define her terms, and remember your history. Don’t let the right hijack Justice Sotomayor’s confirmation hearings and turn them into a denial of constitutional values. This can be a chance to educate the loyal opposition on how constitutional democracy really works. Don’t squander it.


  1. Excellent post.

    It’s silly to think that the Supreme Court can adhere strictly to the exact wording of the Constitution. Times change, the nation changes; as a result, how the law is interpreted needs to change. The argument against judicial activism as conservatives use it is even sillier because, as you say, they only cry foul when a ruling goes against their wishes. Wouldn’t it be “activist” for the court to reverse Rowe v Wade? I doubt you’d find many conservatives who think so.

  2. Brian,
    You are, of course, correct. republicans only calal judges Activist who do not cleave to the current Republican viewpoint on whatever. And only when referring to Democratically appointed judges.

  3. Brian,

    I support judges looking at cultural changes and reinterpreting laws through that lens. Activism starts when the changes haven’t really happened bu the judge thinks they should so they rule in that direction.

    RvW was a bad decision. Even a lot of liberals will admit to that. Yet I don’t see it getting overturned. If anything I could see elements of it coming under fire and maybe the courts forcing a revision. That’s the best case scenario for conservatives.

  4. Mike,

    Careful. In this –

    I support judges looking at cultural changes and reinterpreting laws through that lens. Activism starts when the changes haven’t really happened bu the judge thinks they should so they rule in that direction.

    – You basically describe Brown v. Board. The social change sought hadn’t happened yet, but was long overdue, the South needed to be whipped into shape, and the political branches weren’t going to do it. So the Supreme Court did.

    The problem with Roe is that (1) it isn’t the best defense of the result, which is legally sound, and (2) it was too early, even earlier than Brown was, because the Court misjudged the way the country was heading.

    Also, while we’re willing to admit that Roe isn’t the strongest case, it’s not because the right isn’t real, but because the case doesn’t do the right justice. Don’t for a minute take that disappointment and assume that we’re secretly on your side.

  5. Ames – I don’t have any illusions about liberals being anything other than pro-abortion.

    As for Brown you had a case where rights existed and then were removed. That was the first case of activism. The second case of activism simply righted the ship.

  6. I don’t follow. Plessy didn’t extinguish an existing right – there were no public schools (I think), and no integrated public schools (I KNOW), before it was decided. While about half of the sponsors of the XIVth thouht it would apply to ban segregation in public buildings, there was no consensus. Brown was not a rediscovery – some glorious ritornello to a time before the South learned to be racist – it was a major step forward.

  7. I don’t give a damn about prevailing social and cultural norms. Even if there is a vast majority of the population that thinks blacks are inferior, any ruling striking down segregation and discrimination would still be the right call. It’s the logical application of the law and legal precedents before it, coupled with base knowledge (at this point you can’t argue that blacks aren’t people and get away with it, for instance).

    Anti-sodomy laws are unconstitutional. You can’t outlaw homosexuality. Where this not the case, you could well say “it is too early for gay marriage.” But the questions “is society cool with gays?” and “is society cool with gay marriage” are not relevant here. What’s relevant is if the law is cool with homosexuality (which it most certainly is), and if ensuring same-sex marriage jives with precedent as it stands (I think it does, but that’s the issue at stake here).

    Society understands that homosexuals enter into de-facto spousal relationships, even if society in general doesn’t like that.

  8. Kris, please indulge me: Should the government outlaw sex between siblings?

  9. Ames,

    Plessy was a ruling on private institutions. In 1883 the Supreme Court ruled that the 14th Amendment applied to state institutions.

  10. “Kris, please indulge me: Should the government outlaw sex between siblings?”

    Except there is scientific rationale for prohibiting marital relations among siblings and other close blood relatives.

  11. No, I don’t think the government should outlaw incest between consenting adults, even though it’s weird to me. Obviously the state has an interest in protecting minors from sexual abuse, and in some cases this is all that state incest laws cover. Certainly other states go further, with penalties for any closely-related incest at any age.

    This could be seen simply as an issue of privacy between two adults. The government might have an interest in preventing incest-related birth defects, but as far as I know there are not laws preventing sex in other cases of elevated chance of genetic birth defects (such as between two dwarfs).

    I do not necessarily think it should be unconstitutional to prohibit adult incest, but I do not think it needs to be illegal.

  12. Ditto!

  13. So then Kris I’m assuming you also would be okay with those people getting married. At least you’re consistent in your liberalism.

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  18. sam palinurus · ·

    You are wrong on Heller. Heller did not reverse findings that “rejected” a private right to gun ownership. Fact is the Supreme Court had never ruled on it. Now they have.

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