We are under a Constitution, but the Constitution is what the judges say it is activism or restraint

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To start, how do you interpret the definition of judicial activism?

Judicial activism is generally an unhelpful term. Typically, it’s a rhetorically charged way of saying that you disagree with a decision or think a decision is wrong. What people usually mean by it is, ‘This decision is based on the judge’s policy preferences rather than the law.’ But I think the law/policy distinction is a lot harder to draw than most people realize because a lot of constitutional provisions are vague and value-laden, and the way that they get interpreted and applied are inevitably affected by the way people view the world. A lot of it looks like policy judgment, so if you disagree with it, people say they are following policy and not the law.

When did the term originate?

You can find the same idea of judicial activism in Lincoln’s criticisms of Dred Scott—you could go back that far. You find it in the early 20th century in the progressive era, when the Supreme Court was invalidating progressive wage and hour legislation, and in the New Deal era as well, with Democrats in the 1930s—any time there’s conflict between the Supreme Court and other branches of government. It really came into currency in the Warren Court era, when conservatives were criticizing the Court. It depends on who is in control of the judiciary versus other branches of government.

Conservatives said it about [Justice Sonia] Sotomayor, and honestly that’s kind of racist. There’s this idea that the white male perspective is neutral, and any other perspective is bias, and that bias produces activism. Sotomayor said she would bring a wise Latina perspective, and people said that was a biased perspective.

Could the term ever be objective instead of an insult? Would Clarence Thomas be considered an activist judge by association of his wife, who is a conservative activist?


Well, I don’t know what the term activist judge would mean then. Would it mean associating with an activist? There have been intents to give it an objective definition, and one definition is a justice who votes to strike down a state or federal law, or to overturn a Supreme Court precedent, is activist. You have a contrast between activism and restraint, where one is exerting its power and the other is not interfering with the status quo, and that makes sense, but then it’s not a pejorative anymore, because sometimes the Court should strike down state or federal law or it should strike down precedent.

So it would be incorrect to say conservative judges on the bench right now are activist judges. Could you say religious persuasion is considered activism?

You could say the conservative judges on the bench now are activist in that they are changing the law a lot. So, we are witnessing a transformation of constitutional law in particularly the context of religion, but also with abortion, equal protection, affirmative action, etc. They are activist in that sense. To say they are activist in the conventional sense, then you would go on and say, ‘They are doing this because of their political ideology, not because of how they interpret the Constitution.’ But I think the problem is that people’s political ideologies do affect how they interpret the Constitution. And I believe these justices are acting in good faith and they believe what they are doing is consistent with the Constitution.

Historically, have justices been accused of being activist judges because of religion?

I think we saw that with [Justice William] Brennan, who was the first Catholic judge. But that faded away and he was considered an activist because he was not following Catholic dogma, and was considered a liberal activist.

It would be classical activism if the justices were deciding cases based on religion rather than the Constitution. The basic idea behind activism is ‘You’re not following the law. You’re voting because of something else, politics or religion or race.’

How do you describe the presence of Amy Coney Barrett and Clarence Thomas on the bench if not activist judges?

Amy Coney Barrett is an extremist. Thomas is also an extremist, but he is problematic for other reasons related to his wife. He absolutely should have recused himself from any case related to January 6. Thomas is guilty of misconduct, I would say, under the codes of judicial ethics, although it’s unclear to what extent it binds Supreme Court justices. Thomas is violating the norms of judicial behavior in ways that have nothing to do with ideology, but in ways that have to do with partiality and bias. He also has extreme views as a judge, but that’s a separate issue.

The way that I try to understand activism is not deferring to other branches of government when you should defer as a judge, or when you have no reason to insist on your view of the underlying merits rather than the other government actors do. And there are decisions like that, like affirmative action is a context where judicial intervention looks like activism.

"We are under a Constitution, but the Constitution is what the judges say it is."

Charles Evans Hughes (1862–1948) Jurist Law 1884 Faculty 1884–87 LLD (hon.) 1907

Known as a master of building consensus, the two-time Supreme Court justice Charles Evans Hughes was lauded for his brilliant legal mind. As chief justice from 1930 to 1941, he is credited with maintaining the Supreme Court's ability to function as an independent, coequal branch of government, and for balancing the progressive forces unleashed by the Depression against the conservative forces that sought to confine regulation to a narrow sphere. A prolific and talented writer, he penned twice as many opinions as any of his contemporaries on the Supreme Court. Hughes was elected governor of New York in 1906 and appointed as an associate justice of the U.S. Supreme Court in 1910. He resigned from the bench in 1916 to run for president and returned to private law practice after losing one of the closest elections in American history to Woodrow Wilson. Appointed secretary of state by President Warren Harding in 1921, he later served as a judge of the Permanent Court of Arbitration and the Permanent Court of International Justice before President Herbert Hoover appointed him chief justice of the United States in 1930. In that post, he wrote the opinions in key cases concerning the New Deal, such as West Coast Hotel v. Parris, National Labor Relations Board v. Jones & Laughlin Steel Corporation, and Schecter Poultry Corp. v. United States. In 1937, he opposed Roosevelt's court reorganization plan, which, opponents labeled as "court-packing."