What is an example of a court case that has been or could have been scrutinized as judicial activism?Many people fear that judges have too much power.An author named Robert Bork recently wrote,...

What is an example of a court case that has been or could have been scrutinized as judicial activism?

Many people fear that judges have too much power.An author named Robert Bork recently wrote, “The nations of the West are increasingly governed not by law or elected representatives, but by unelected, unrepresentative, unaccountable committees of lawyers applying no law other than their own will.” In other words, Bork accused judges of going beyond their role of simply interpreting law and starting to make law.

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pohnpei397's profile pic

pohnpei397 | College Teacher | (Level 3) Distinguished Educator

Posted on

The court case that is most often pointed to by conservatives as an example of judicial activism is Roe v. Wade.  This was the 1973 case that found the right to an abortion in the Constitution.

The case (and the less well-known Griswold case on which it is based) found that the Constitution protects a right of privacy.  Obviously, there is no amendment or clause that explicitly protects such a right.  However, the Court held that various parts of the Constitution imply this right.

Conservatives point to this case and say that it is an example of judges making law rather than simply interpreting the words of (in this case) the Constitution.

lorrainecaplan's profile pic

Lorraine Caplan | College Teacher | (Level 1) Educator Emeritus

Posted on

Going even further back, Brown v. Board of Education (1954) is an example of what some may call judicial activism.  I was a young child when this case was decided, so I was not cognizant of the political responses of the time, but I will make an educated guess that many southern politicians felt that the court had exceeded its powers in making its decision.  It was in this case that the court held that black and white children could no longer be educationally segregated in schools that were meant to be "separate but equal."  The previous law of the land was that segregated schools passed Constitutional muster as long as they provided equal education.  The court could very well have upheld this principle, which would have set the civil rights movement back hundreds of years.  After all, there is nothing in the Constitution and its amendments that requires people to go to school together. That they chose to make this unprecedented leap is, in my opinion, judicial activism at its finest.  It's a shame that this term has been used as an accusation, rather than a means of praising the courage of a court in overruling a moral injustice, in this case and so many others.  

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