• Heritage Action
  • More
Return to Rule of Law Initiative

Judicial Activism

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.

Lawrence v. Texas


In a 6-3 opinion, the Court struck down a Texas statute that criminalized homosexual sodomy.  In doing so, the Court overturned the 17-year-old precedent of Bowers v. Hardwick, the 1986 Supreme Court case declaring the Constitution does not speak to, and does not forbid states from prohibiting homosexual conduct a crime. In the majority opinion, Justice Kennedy argued that the Constitution embodies a right to private homosexual sodomy in the liberty interests of the Due Process Clause in the Fifth and Fourteenth Amendments, and that the statute furthered no legitimate state interests that could justify an intrusion into such a private relationship.


This case is activist because the majority embraced notions of living constitutionalism.  The Court created a “constitutional right” out of whole cloth that is not supported by the text of the Constitution and is entirely irreconcilable with the large body of law that has opposed it throughout our nation’s history.  In doing so, the judges abandoned their duty to interpret the Constitution and instead endeavored to amend it.  Justice Kennedy’s majority opinion unabashedly states that this decision elevates what the judges believe to be a “liberty interest” above the authority of the laws.  Revealing obvious sympathy for the litigant, he proclaims that statutes such as the one addressed here “seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. “  Though claiming that such liberty interests are rooted in the Due Process Clause, the majority displays their awareness that this has no grounding in the original meaning of these Amendments: “[h]ad those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific.”  Indeed, sodomy was prohibited by all 13 states when they ratified the Bill of Rights.

With their invention of this new “right,” the judges conferred constitutional status to a policy issue not even addressed by the Constitution, thereby removing it from the democratic process where it rightly belongs.  Justice Clarence Thomas’ dissent demonstrates the majority’s failure to understand their duty to abstain from making policy judgments, no matter how unwise they believe a law to be:


If I were a member of the Texas Legislature, I would vote to repeal it… Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to "decide cases 'agreeably to the Constitution and laws of the United States.'"

Case Basics


Court & Reporter NumberSupreme Court, 539 U.S. 558

Type(s) of Activism
  • Playing Favorites
  • Living Constitutionalism
Area(s) of law
  • Privacy Rights
  • Due Process
  • Stephen G. Breyer
  • Ruth Bader Ginsburg
  • Anthony M. Kennedy
  • David H. Souter
  • John Paul Stevens
  • Sandra Day O'Connor
  • William H. Rehnquist
  • Antonin Scalia
  • Clarence Thomas