Reported Sightings of Judicial Activism

Liberals and conservatives don’t agree on what judicial activism is, and here are some of the cases they cite in making their arguments.

Makes conservatives mad

Roe vs. Wade, 1973

This landmark decision legalized abortion by enumerating a right of privacy extrapolated from a broad reading of the 14th Amendment’s equal protection clause. Conservatives object that such a right is not expressly found in the Constitution, and that the justices should not have taken the case because abortion should be a matter for legislatures, not courts.

Lawrence vs. Texas, 2003

The ruling decriminalized same-sex sodomy and established what some constitutional scholars call a right to sexual privacy. “I think the big reason people question these judicial decisions is because [the court] federalizes [them],” said John Yoo, a law professor at UC Berkeley. “It’s less relevant how the court rules than the fact that it’s ruling at all.”

Lochner vs. New York, 1905

Though not commonly discussed today, the court broadly interpreted the 14th Amendment, in particular the words “liberty,” “property” and “due process,” to strike down maximum-work-hour laws. “Some conservatives might dislike the maximum work laws, but they still believe it should be up to the states or the people to decide,” said Eugene Volokh, a professor of law at UCLA.

Santa Fe Independent School District vs. Doe, 2000

In banning student-led prayer in public schools, the court majority erected a “wall of separation” between religion and government that conservatives believe has no foundation in the Constitution’s establishment clause. Historically, they contend, custom allowed such religious practices, and thus the divide between church and state is not so stark as to require such a ruling or to be constitutionally sanctioned.

Makes liberals mad

Bush vs. Gore, 2000

Many conservatives would say the only reason liberals cite this ruling as an instance of judicial activism is because they didn’t like the outcome. But other liberal scholars contend that the court violated federal principles in the Constitution when it disallowed Florida to count its presidential election ballots. “[This] is a case where five judicial conservatives who had narrow views of equal protection suddenly applied the same clause broadly to ballot-counting,” Harvard law professor Alan Dershowitz said.

United States vs. Morrison, 2000

The court declared part of the Violence Against Women Act unconstitutional because “gender-motivated” crimes don’t fall under the Constitution’s commerce clause. Both Yoo and University of Chicago law professor Cass Sunstein cite this case as activist in liberal eyes because it expands states’ power at the expense of the federal government. “[Liberals] wouldn’t claim that there is no textual basis for [the federalism] cases, but they would say that the propriety of legislating personal rights is key, going back 50 years,” Volokh said.

United States vs. Lopez, 1995

In ruling that the Gun-Free School Zones Act of 1990 was unconstitutional, the court decided that students carrying guns into schools is not commerce in the constitutional sense and thus should not be regulated by Congress. “[But] guns have a national market,” Dershowitz said. “Guns come from California, guns come from Texas, guns come from Arizona. People travel across state lines with guns.”

Seminole Tribe of Florida

vs. Florida, 1996

The Rehnquist court has broadly used the 11th Amendment to expand the powers of the states by immunizing them against lawsuits filed under federal law. The Seminole case, the first of many rulings using the 11th Amendment to implement the court’s doctrine of federalism, precluded Indians from suing states under the Indian Gaming Regulatory Act. Later rulings limited citizens’ claims in such matters as bankruptcy, child support and the Disabilities Act.

-- Swati Pandey