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“Activist Judges?” It Depends On Whether You Agree With Them

Barun Singh

The American Bar Association recently revealed that 56 percent of Americans strongly or somewhat agreed with one congressman’s assertion that “Judicial activism … seems to have reached a crisis. Judges routinely overrule the will of the people, invent new rights and ignore traditional morality.” The concept of judicial activism has certainly had a practical tether in the realm of politics, as President Bush’s largest push for Harriet Miers, as with John Roberts, is that she won’t “legislate from the bench.” (Many statements from the right suggest a desire for Supreme Court justices that do legislate from the bench, but do so with a more conservative bent than in recent history — but that is a separate topic).

Discounting the re-emergence of the culturally conservative movement, the country has clearly moved toward more liberal stances on a number of issues, most noticeably in the realm of civil rights. Many of these cultural changes have been facilitated by the courts: Brown v. Board of Education (outlawing racial segregation), Engel v. Vitale (disallowing school prayer in public schools), Roe v. Wade (overturning most state restriction of abortions), Lawrence v. Texas (striking down anti-sodomy laws), and so forth. But have these really been cases of “activism”?

The primary argument against “activism” in the judiciary is that it somehow violates the separation of powers, and many on the right have recently voiced their opinions that strict constructionism, relying only on the exact text of the Constitution, is the only way to maintain a judiciary that acts appropriately. This is an idea that warrants some further debate.

Often, when talking about the strict constructionist view of the Constitution, people invoke the founding fathers, claiming that an interpretation of the Constitution that includes rights not explicitly written within the document would be violating the intent of the framers. Examining the historical context within which the Constitution and its first 10 amendments (the Bill of Rights) were written suggests that nothing could be further from the truth.

When James Madison proposed the Bill of Rights to Congress in 1789, he outlined the arguments for and against it. Most of us should be familiar with the arguments for it: to ensure individual liberties and prevent one form of tyrannical rule from being supplanted by another. The interesting part is the main argument against the Bill of Rights: that by explicitly writing out a set of rights, one might inadvertently be implying that individuals were not guaranteed any rights beyond those listed. In Madison’s own words:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out … were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution. [later adopted as the ninth amendment to the Constitution]

At the same time, one must be respectful of Amendment X, which guarantees states’ rights. This is where subjectivity is forced to play a role. The Constitution verifies that individuals do have certain rights beyond those explicitly listed, i.e., there do exist certain hidden or implied rights within the Constitution. It also gives states the right to govern their constituents, except where such governance might contradict with the Constitution. So if a state law is passed preventing an individual from acting in a certain manner, it is reasonable to ask if that law violates those inalienable rights guaranteed, but not explicitly listed, in the Constitution.

What should the basis be for making a ruling in such cases? The basis for Roe v. Wade was, for example, that the Constitution implied a general right to privacy, and abortion laws violated that right. Reasonable people may agree or disagree with the ruling, but there is little basis for calling it an abuse of power. In fact, one could even point out that calling Roe an abuse of power is logically unsound: if one holds that a general right to privacy cannot be justified because it is not explicitly stated in the law, one cannot logically hold that the notion of not legislating from the bench is justified because it is never explicitly stated in the Constitution. The separation of powers is only an implicitly held concept, imposed in practice through various checks and balances.

Is it true that all of the Supreme Court’s rulings have been just according to the moral framework held by the majority? Probably not. Might the country operate more smoothly if we restructured various checks and balances (for example, as some on the right have suggested, by imposing term limits on Supreme Court judges)? Perhaps. But is it justified to claim an abuse of power by the judiciary because it has issued an interpretation of the Constitution that you disagree with? No.

Barun Singh is a graduate student and former president of the Graduate Student Council. He welcomes comments at his Web site (