Judicial Activism Vice Rulings You Don’t Like

Eugene Volokh defends a controversial ruling by the 9th Circuit from charges of judicial activism. The court dismissed a suit brought by parents against a rather explicit sex survey given to public elementary school students, ruling, “There is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children . . . Parents have no due process or privacy right to override the determinations of public schools as to the information to which their children will be exposed while enrolled as students.”

Eugene correctly observes,

The panel’s decision is not activism, under any sensible definition of activism. If “activism” has any substantive meaning, then activism is what the plaintiffs were asking the court to do.

The plaintiffs argue that they have a constitutional right to stop the public schools (or to be precise, researchers working with the schools’ authorization) from asking their children about sex. That’s not in the copy of the Constitution that I have; nor is it in the Court’s jurisprudence of parental rights, a rather “activist” creation of the Court’s (which incidentally used the same “substantive due process” framework that many conservatives fault the Court for using in the abortion cases). Constitutional parental rights, as the Court has interpreted them, do include the right to send your kids to private school, if you wish. (Such a right should in my view also be recognized under the First Amendment.) But they don’t include a constitutional right to send your kids to public school yet block the school from asking the kids about sex.


I am not defending here what the school did; perhaps its actions were proper and perhaps they were wrong (I express no opinion on that here). But if the plaintiffs don’t like what their school district is doing, they should go to the polls and elect a school board that’s more to their liking; elect state legislatures that would enact laws banning such actions by the school board; propose such a law by initiative; or otherwise act through the political process. They aren’t entitled to have judges impose their will (the parents’ and the judges’) on the school district. And they certainly shouldn’t be unfairly criticizing the judges’ actions, and mischaracterizing allegedly excessive passivity as “activism.”

Quite so. It earned Gene inclusion in a group hug with the lovely Belle Warring, which I happily join.

People bandy the term “judicial activism” around rather loosely, usually as an argument against rulings whose policy outcomes they dislike. Other times, it is used simply to mean judges striking down laws passed by the legislature (see Orin Kerr’s rebuttal of that one). Larry Solum‘s thoughtful essay on the topic argues that “judicial activism” and “strict construction” are essentially meaningless. In practice, he may be right. In theory, though, they are rather powerful standards.

When I use the term “judicial activism,” I mean, roughly, “judges deciding cases based on their preferred policy outcomes and then crafting a rationale to buttress their decision, regardless of whether it is supported by the text of the Constitution or history.” So, for example, while I very much liked the policy outcome of Griswold v. Connecticut, which overturned a law prohibiting sale of contraceptives, I view it as a case of judicial activism because it struck down a duly passed law that was well within the historical norms of our society by creating, virutally out of whole cloth, a Constitutional right of privacy.

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U.S. 497, 516 -522 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The Fourth and Fifth Amendments were described in Boyd v. United States, 116 U.S. 616, 630 , as protection against all governmental invasions “of the sanctity of a man’s home and the privacies of life.” * We recently referred [381 U.S. 479, 485] in Mapp v. Ohio, 367 U.S. 643, 656 , to the Fourth Amendment as creating a “right to privacy, no less important than any other right carefully and particularly reserved to the people.” See Beaney, The Constitutional Right to Privacy, 1962 Sup. Ct. Rev. 212; Griswold, The Right to be Let Alone, 55 Nw. U. L. Rev. 216 (1960).

We have had many controversies over these penumbral rights of “privacy and repose.” See, e. g., Breard v. Alexandria, 341 U.S. 622, 626 , 644; Public Utilities Comm’n v. Pollak, 343 U.S. 451 ; Monroe v. Pape, 365 U.S. 167 ; Lanza v. New York, 370 U.S. 139 ; Frank v. Maryland, 359 U.S. 360 ; Skinner v. Oklahoma, 316 U.S. 535, 541 . These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.

The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a “governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” NAACP v. Alabama, 377 U.S. 288, 307 . Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The [381 U.S. 479, 486] very idea is repulsive to the notions of privacy surrounding the marriage relationship.

We deal with a right of privacy older than the Bill of Rights – older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

Indeed, Griswold perfectly demonstrates the idea of judicial activism. By stringing together a series of decisions that were, in of themselves somewhat dubious, or dicta and even dissenting opinions from those decisions, they manufactured a brand new constitutional right. Then, seven years later, they used that right to manufacture yet another one, a right to have an abortion.

Again, I support the outcome of Griswold. By and large, I even think that a generalized right of privacy is desirable. But, because those things are not in the Constitution, they should not override the will of the people as expressed through their elected representatives.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Herb says:

    This will continue until our glorious Senators get the necessary physical equipment to IMPEACH these activist judges.

  2. Sebastian Holsclaw says:

    Eisenstadt v. Baird is an even better case. Griswold pretended to be grounded deeply in the historical marital right–and thus has at least a tenuous claim to the 9th amendment. Eisenstadt just ignores all that and extends the right to everyone without even bothering to figure out anything historically and without even bothering to explain why the importance of the history of marriage allegedly made Griswold possible.

  3. Malro says:

    “judges deciding cases based on their preferred policy outcomes and then crafting a rationale to buttress their decision, regardless of whether it is supported by the text of the Constitution or history.”

    The majority opinion in Bush v. Gore immediately comes to mind.

  4. McGehee says:

    Malro, I had the exact same thought. Damn that activist Florida Supreme Court.

  5. AST says:

    Excellent post. This is why I was so offended by the attacks on Miers. I think it is the more intellectual types who tend to confuse objectivity and their own views. It doesn’t take an Ivy League education or the top of the class to understand the difference between activism and rulings based on the law. I fully acknowledge that Miers wasn’t the best candidate in terms of eminence and paper trail, but she helped Bush define what he is looking for in a judge, and she’s not the kind to do a lot of schmoozing with D.C. lawyers and law profs.

    Alito is definitely a superior pick if what you care about is reputation, judicial experience and paper trail. I just think the idea that you have to pick the consensus best choice to get it right.

    On Bush v. Gore, I agree that the final opinion was poorly reasoned. I would have just said that without evidence of fraud, this isn’t a question for the courts, state or federal and put it back to what the Secretary of State certified. It’s not possible to ever get an accurate count, especially when you start trying to divine voter intent by examining the chad. I would have overruled the courts in the Washington governors race as well. Courts have no business deciding elections, except as I say in the presence of actual fraud.