Judicial Activism and Restraint

Judicial restraint holds that judges should defer to elected legislatures and executives unless a violation of the Constitution is clear. Harvard law professor James Bradley Thayer argued in 1893 that courts should strike down a law only when its unconstitutionality is so clear that it is not open to rational question. Justice Oliver Wendell Holmes Jr. applied that view in his 1905 dissent in Lochner v. New York, protesting that the Court was imposing an economic theory the Constitution did not contain. Arthur Schlesinger Jr. introduced the term judicial activism in a 1947 Fortune magazine article describing divisions on the Supreme Court.

The labels have shifted with the Court's direction. Progressives accused the Court of activism when it struck down economic regulations before 1937, while conservatives used the term against the Warren Court of the 1950s and 1960s for decisions on school desegregation, criminal procedure, reapportionment, and privacy. More recently, liberals have described decisions such as Citizens United v. FEC in 2010, Shelby County v. Holder in 2013, and Dobbs v. Jackson Women's Health Organization in 2022 as activist, while conservatives say those rulings corrected earlier departures from the Constitution.

Scholars note that activism is hard to define consistently. It may mean striking down laws, overruling precedent, departing from the text, deciding more than necessary, or reaching a disliked result, and justices of every outlook do some of these things. Studies counting federal laws invalidated by the Court show that both liberal and conservative majorities have struck down statutes. Defenders of an active Court say judges must enforce constitutional limits even against popular majorities, while defenders of restraint say unelected judges should leave contested questions to democratic processes.