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The Activist Toolkit

Judges who depart from their proper constitutional role and engage in judicial activism often use one of the following justifications for diverging from the original meaning of the law.

  1. Playing Favorites: Judges elevate personal sympathy for a litigant above the requirements of law.
  2. Contorting Text: Judges strain the plain text to achieve their apparent desired ends, bending terms to the point of breaking.
  3. Living Constitutionalism: Judges rely on the so-called “Living Constitution” to make the Constitution comport with their self-described enlightened sensibilities.
    "Evolving Standards of Decency": Rather than interpreting the Eighth Amendment according to its original meaning, judges assert erroneous assessments of popular opinion in order to supplant the amendment with their own preferred meaning.
    Substantive Due Process: Judges read broad constitutional terms divorced from any textual or originalist moorings, thereby making them empty vessels into which they can pour any policy preferences they desire.
    Making Up Rights: Judges create a “right” not found anywhere in the text of the Constitution or our nation’s laws and traditions, thus abandoning their duty to interpret the Constitution and instead endeavoring to amend it.
  4. Judicial Imperialism: Judges expand the power of the judiciary beyond its constitutional limits.
    Judicial Hubris: Judges make claims of judicial supremacy or judicial exclusivity.
    Self-aggrandizement: Judges seize power from the other branches to decide issues that do not fall within the purview of the judicial power.
    Independent Judgment Masquerading as law: Judges cite their own “independent judgment” as authoritative when there is no justification thereof, wresting power from the elected branches.
  5. Importing Foreign Law: Unable to justify their conclusion with U.S. law, judges turn to international law to justify their preferred outcome.
  6. Playing Legislator: Judges weigh policy considerations above the requirements of law.
  7. Abusing Precedent: Judges expand on or invent erroneous precedents to give legal status to their preferred outcomes.
    Reinforcing Grave Errors: Judges reinforce and expand on a prior error of the Court.
    Precedential Revisionism: Judges mishandle or misread a Court’s precedent to arrive at a desired result.
  8. Nullifying Rights: Judges abolish the protection of established rights to which they are personally opposed.
  9. Judicial Dishonesty: Judges mischaracterize the facts or emphasize selective facts to support a desired result.

Judicial activism occurs when judges write subjective policy preferences into the law rather than apply the law impartially according to its original meaning.  As such, activism does not mean the mere act of striking down a law. Indeed, under a proper understanding of activism, if a judge fails to strike down a law that clearly offends the Constitution, he or she is engaging in activism by failing to apply the Constitution. Judicial activism also is not simply another way of expressing that you believe the judge to have reached a bad policy outcome. In applying the law dutifully, as it is written, a judge is likely to reach conclusions that are or may be perceived to be bad policy, but are nonetheless correctly decided.

By engaging in judicial activism—that is, writing subjective policy preferences into the law rather than applying the law impartially according to its original meaning—judges undermine the rule of law and the ability of the people to decide important issues through their elected representatives. In short, judicial activism undermines the democratic process that is vital to our system of government.

In contrast, a constitutionalist judge interprets the laws as they are written, regardless of whether they personally approve of the laws, whether they would have written them the same way if they were in the legislature, or whether they would prefer a different outcome in the case. As Chief Justice John Roberts insightfully explained in his confirmation hearing: “Judges are like umpires. Umpires don't make the rules; they apply them.” This is how the American Founders understood the judicial role. In Federalist 78, Publius declared that the judiciary would be the “least dangerous branch” because judges would apply neither “force nor will, but merely judgment” in the decision-making process.

The Heritage Foundation