The Varieties Of Activist Judges

The Warren Court

Ever since the 1950s conservatives have railed against “activist judges”. They mean the Warren Court. because it took a broader view of the Equal Protection Clause of the 14th Amendment than the Reconstruction-Era Supreme Court did in cases like The Civil Rights Cases.

The Warren Court said in Brown v. Board that Black kids must get the same education that White kids get, and the way to insure that was to put all the kids together in the same schools.

In Gideon v. Wainwright, the Warren Court said that the right to counsel in criminal cases was meaningless for all of the people who didn’t have enough money to pay a lawyer. It forced states to provide counsel for every defendant who couldn’t pay for one.

The Warren Court established a zone of personal privacy in Griswold v. Connecticut. It established a right to abortion in Roe v. Wade.

These and many other Warren Court cases have a common thread. They all improve our democracy by making sure that more and more people share in the rights and benefits of being an American citizen. Some of them increase our ability to participate in our democracy, as in Baker v.Carr. Some increase our personal freedom. Some insure that everyone receives a greater level of protection from government prosecution or interference. All of them take the Reconstruction Amendments seriously, and try to implement them, as Congress expressly intended.

The Warren Court’s broad reading of the Constitution horrified conservatives because it upset a century of Constitutional decisions and laws designed to insure the suppression of Black people and women and insure White male supremacy.

A very brief discussion of the theory of Constitutional and Statutory interpretation

Over the centuries the Common Law and US jurisprudence worked out a number of theories of interpretation of the Constitution. In 2021, the Congressional Research Service issued nine very short essays under the heading The Modes of Constitutional Analysis. Here’s an index.

1. The Modes of Constitutional Analysis: An Introduction (Part 1)

2. Textualism

3. Original Meaning

4. Judicial Precedent

5. Pragmatism

6. Moral Reasoning and the National Ethos

7. Structuralism

8. Historical Practices

9, The Constitutional Avoidance Doctrine

These essays provide an introduction to the basic concepts with examples, and describe some of the pros and cons of each mode.

In general, SCOTUS decisions and dissents rely on a combination of these modes of analysis. Griswold v. Connecticut, with its concurring and dissenting opinions  is a good example of the application of most of these modes of analysis.

Warren Court Jurisprudence

The Warren Court’s decisions follow a tradition laid down in the English Common Law and imported to the US as part of tour legal system. Courts hear hundreds of cases, and they write down the facts, the decisions and the rationale for their rulings. These accumulate over time, and gradually the courts build up principles which they follow in current cases. These rules are gathered into books and taught to lawyers who can use them to advise clients of likely outcomes. This is what is meant by the terms stability and predictability used in the CRS essays.

Griswold is a good example. The majority held that the Constitution protected a zone of privacy for Americans. The words do not appear in the Constitution. William Douglas, writing for the majority, examined a number of cases construing different parts of the Bill of Rights, and synthesized them into  the proposition that state and federal governments are not allowed to invade people’s personal lives or interfere with their private decisions. Marriage is one of those areas. As Douglas said:

Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.

Conservatives mock the use of the terms penumbra and emanation used by Douglas, but they have-no acceptable answer for this question. Each of the modes of analysis (other than originalism) support this outcome. That didn’t stop conservatives from attacking the Warran Court,  and it didn’t stop them from pushing government into our private lives either.

Conservative Activism

In  the 1970s rich conservatives began to fund efforts to reverse the Warren Court decisions. They set up organizations like the Federalist Society and others led by Leonard Leo to push conservative ideas through law professors and legal think tanks.

These academics produced motivated scholarship aimed at getting rid of any mode of constitutional analysis that could be used to expand rights. Conservatives argued that only textualism and originalism, and perhaps judicial precedents from the 19th and early 20th Centuries, are legitimate forms of Constitutional analysis. Everything else is activist. These conservative academics produced a cadre of movement lawyers who now staff groups funded by rich right-wingers. like Americans Defending Freedom. They generated a roster of potential judges committed to the conservative legal project.

Here’s an explanation from Nelson Lund, a professor at the Antonin Scalia Law School at George Mason University, writing in the New York Times.

The goal of the conservative legal movement has been to replace the result-oriented adventurism of the Warren court during the 1950s and 1960s with respect for the original meaning of the Constitution, including its allocation to Congress of the sole authority to enact and amend statutes. If the government wins either of these cases, let alone both, that movement should recognize that its project has not succeeded.

The two cases Lund is talking about are US v. Rahimi and Garland v. Cargill. Rahimi is the subject of a domestic abuse order under which he may not possess guns. Cargill sells bump stocks which are barred by a federal rule. Lund seems to think it would be “activist” to uphold democratically enacted laws, rules, and court orders restricting violent domestic abusers, and stop the sale of attachments that, as he puts it, “facilitate mass murder.”

Lund’s statement that conservatives want to protect the Congressional power as the sole authority to enact and amend statutes is laughable. His interpretation of the Constitution bars Congress from regulating firearms at all, and from empowering federal agencies to act under statutory limitations.

Lund and the Roberts Court refuse to consider the real-world results of their ideology. It’s nothing to them if women suffer and die, or if not-white votes are suppressed or if domestic violence deaths rise, or mass murders plague churches, schools, concerts, and shopping malls.

The judicial activists on the Roberts Court demonstrate the damage an ideologically-driven and unconstrained SCOTUS can do to democracy.

52 replies
    • Ed Walker says:

      Thanks. Fixed. As always, with my bad eyes,typos are a problem no matter how hard I try, and I appreciate and need all the help I can get.

      • AgainBrain says:

        First para after “Warren Court Jurisprudence”: “…as part of tour legal system.” Pretty sure you meant “our legal system.” Many thanks for another excellent, thought-provoking article!

  1. Rugger_9 says:

    When fully evaluating the Warren Court, it should be noted that its decisions about topics previously left to the states (such as Brown v Board or Gideon) routinely ended up in unequal application of the laws by those states / individuals. In short, our current revanchists had their opportunity to show their policies worked and the evidence showed they did not.

    Warren was no tree-hugging DFH when he was nominated by Eisenhower (a Republican), as shown by his time in CA. But, even Warren saw how two-tiered enforcement by race or wealth or… meant trouble for all.

    Roe v Wade only accelerated a process where most of the states had already repealed abortion bans, but the sudden shift for the others made it a cause celebre.

    • Ed Walker says:

      The part that really makes me angry is the attack by the Roberts Court on the principles of jurisprudence I was taught in law school in the 70s. The decisions of the Warren Court could not be attacked without eliminating the modes of analysis laid out above, and insisting that only the precise language of the Constitution could be considered in deciding any Constitutional question.

      It seems to me that the traditional rules provided a kind of legitimacy. As you note, Warren himself was a typical Republican mostly in the Eisenhower way. Other members of the Court were also moderate to conservative. They were able to put their personal feelings to the side and apply those rules to their decisions.

      The Roberts Court has thrown off all the restraints imposed by the standard rules. They are engaged in pure power politics.

      Everything the Republicans touch rots.

      • Bugboy321 says:

        “Everything the Republicans touch rots.”
        As I mentioned elsewhere on the intertoops, it rots for the rest of us. For the investors they represent and their very own investments? Not so much. See also: the prison industrial complex.

        I really can’t tell where they think they are going with the abortion bans, but I’m sure there’s a pot of gold in there somewhere.

      • bmaz says:

        Ed is right. “Activist judges” is always a thing of the moment. The difference is once it was about (okay, the Warren Court) expanding rights and the current SCOTUS taking them away. The difference could not be more profound.

    • says:

      Roe v. Wade was Burger Court (CJ Warren Burger), with Burger voting with majority in favor of abortion rights.

      But not to detract from your important message, which is crucial for us to ponder as a society. . . It only affirms that TODAY we some Roe as an ‘activist’ opinion, but at the time viewed as Conservative to get the government out of your personal business. Even the Southern Baptist Convention was not convinced to be against abortion until the early 70s.

      • Rugger_9 says:

        I am sorry to have inadvertently linked Roe in with Warren, I need to make it clearer. FWIW, Burger was even more conservative (I think Nixon appointed him) which makes the Roe decision all the more surprising.

        • hstancat says:

          Abortion/pro Life was neither a conservative nor mainstream
          Republican issue when Roe came down. At the time, more Democrats objected to abortion rights than did Republicans.

        • Ed Walker says:

          I think most conservatives think of the Burger Court as a continuation of the Warren Court, especially in its early years.

        • says:

          Yes, much to Nixon’s dismay.

          It’s hard not to view the Senate’s rejection of Haynsworth (and Carswell afterward) as pivotal in keeping the Court from veering hard right.

          17 Senate Republicans voted against Haynsworth — Nixon’s first choice to fill Abe Fortis’ seat. Of course this was back in the day when the Senate had the courage to tell the Prez ‘no’ if his wishes were not good for the country.

  2. CovariantTensor says:

    Yes, railing about “judicial activism” is so twentieth century. These days a judge in Texas can rule that the FDA’s approval of an abortion drug from some twenty years ago was improper despite a lack of evidence of undue harm done (other than to unborn fetuses, of course. Any drug carries some risk)–effectively “legislating from the bench”. So much for letting each state decide for itself. The SCOTUS is taking its sweet time about permanently reversing it, which it absolutely should do.

    • Rugger_9 says:

      General anesthesia (needed for a tubal ligation) carries a 3% or so risk of not waking up just from being put under. ‘Party of life’ indeed.

  3. earlofhuntingdon says:

    To correctly rephrase Nelson Lund’s self-serving misdescription of the hard right’s efforts to overturn the Warren court’s precedents,

    The goal of the conservative [sic] legal movement has been to replace the Warren court’s logical extension of civil rights to all Americans with the white male, wealth-oriented authoritarianism of the Rehnquist and Roberts courts. It has built its efforts around the current court’s invention of one dollar – one vote conservatism.

    Nelson Lund portrays his efforts as principled. Perhaps, but only in the way a billionaire would call his lobbying for tax breaks principled.

    • Ed Walker says:

      I laughed when I read this because I had an almost verbatim sentence in my next-to-last draft of this post.

  4. bmaz says:

    Good thing there is no playoff basketball currently going on. Especially anything involving women.

    • Estragon says:

      Thank you, Ed, for a thoughtful post.

      Complaints about judicial activism always struck me as at their core complaints about the “wrong” kind of activism. And of course the opposite of “activism” isn’t “textualism” in any meaningful sense… See for example the very textualist approach of reading an “and” instead of an “or” into the 1512(a) and (b) subsections— coming soon to a Supreme Court decision near you!

      I’m not sure how basketball fits in but I’ve had a long day out in the sun and my brain is a bit fried

  5. El Señor Onazol says:

    Great post. The difficulty of amending the Constitution is another thing worth mentioning in my opinion. If more *text* could be added easily through a democratic process to the nation’s governing document, then textualism might actually work to protect our rights.

    But as it is, you hit the nail on the head for why textualism is anathema to (insure —> ensure) their preservation. I was taught in American History class is high school that the Constitution was a “living” document.

    Originalism is essentially the contrary view: it should be studied instead like fundamentalist religious scholars study the Bible, every word fixed and deliberate and the entirety of it frozen in time exactly as it was “handed down.”

  6. dopefish says:

    extra words: is a good example of the application of the application of

    Also a typo o4 -> or : invade people’s personal lives o4 interfere

    Btw thanks Ed for this interesting post!

  7. Peterr says:

    One strain of SCOTUS decisions that completely pissed off the religious right wing folks are those that undermine their a-historical vision of the US as some kind of Judeo-Christian nation.

    In 1962, in the case Engel v. Vitale, the Warren Court ruled against state-sponsored teacher-led prayer. The NY State School Board put forth a specific non-denominational prayer that the recommended be offered each day: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country. Amen.” SCOTUS said no, you can’t do that. When the First Amendment said “no law respecting an establishment of religion,” this actually meant you couldn’t prescribe that all schoolkids open the day with a state-directed, state-led (with the teacher as an agent of the state) prayer.

    The next year, SCOTUS heard Abington School District v. Schempp where Pennsylvania schools were required to open the day with a variety of specific Bible readings and the Lord’s Prayer. Again, SCOTUS said no. It’s as if the rightwing said “You didn’t really mean what you said in Engel v. Vitale, did you?” and SCOTUS said “We most certainly DID mean it.”

    For you youngsters in the crowd, ask your grandparents about it, This set off the rightwingers like you wouldn’t believe. No official Christian prayers in schools? No official Bible readings? THIS IS THE ANTI-CHRIST!

    Note, too, that two years later. SCOTUS ruled on Griswold, which only amplified the sense that SCOTUS is leading the US into a godless future.

    • ItTollsForYou says:

      Except the rightwing’s view of these cases is utterly wrong. Many of the Justices were devout Christians and were terrified of having government-issued religion that would be watered down and anodyne.

      • earlofhuntingdon says:

        American constitutional law is based on the premise that government should neither favor nor disfavor any one or no religion. The issue is not a concern that a “government-issued religion … would be watered down and anodyne.”

        The Roberts court is actively promoting a central role for religion in government – and Christianity, in general, over other religions. Neither position is constitutional. But this is the Roberts court, which doesn’t seem to care.

        • ItTollsForYou says:

          You are, of course, correct. What I intended to say is that it was a secondary concern. From Engel v. Vitale:

          “But the purposes underlying the Establishment Clause go much further than that. Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion. The history of governmentally established religion, both in England and in this country, showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs. That same history showed that many people had lost their respect for any religion that had relied upon the support of government to spread its faith. The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its “unhallowed perversion” by a civil magistrate.”

  8. harpie says:

    This is the beginning of Mark Joseph Stern’s article about
    SCOTUS recently hearing arguments in: Fischer v. United States:

    Hundreds of Jan. 6 Prosecutions—Including Donald Trump’s—Are Suddenly in Peril at the Supreme Court MARK JOSEPH STERN APRIL 16, 2024 5:23 PM

    Will the Supreme Court jeopardize the prosecution of more than 350 defendants involved with Jan. 6, including Donald Trump, by gutting the federal statute that prohibits their unlawful conduct? Maybe so. […]

    • harpie says:

      […] Would anyone seriously argue that this person [Fischer] did not attempt to corruptly obstruct an official proceeding? For a time, it seemed not: 14 of the 15 federal judges—all but Judge Carl Nichols in this case—considering the charge in various Jan. 6 cases agreed that it applied to violent rioters bent on stopping the electoral count. So did every judge on the U.S. Court of Appeals for the District of Columbia Circuit except one, Judge Gregory Katsas. Both Nichols and Katsas were appointed by Trump.

      Their crusade to kneecap the law caught SCOTUS’ attention, and the court decided to intervene despite overwhelming consensus among lower court judges. […]

    • harpie says:

      Stern quotes Thomas, Gorsuch and Alito, then writes [emphasis added]:

      […] To be clear, this is trolling: There is simply no comparison between a violent attack on the Capitol and protests that take the form of civil disobedience. And these justices expressed no similar concern [link] about an ongoing red-state effort to persecute peaceful protesters who participate in Black Lives Matter demonstrations. […]

      The link is to Ian Millhiser at VOX, from 4/15/24,
      when SCOTUS announced it would NOT intervene:

      The Supreme Court effectively abolishes the right to mass protest in three US states It is no longer safe to organize a protest in Louisiana, Mississippi, or Texas. [[DeRay] Mckesson v. Doe.]

      Stern continues:

      […] This kind of behavior from Thomas, Gorsuch, and Alito is no surprise at this point. And the liberal justices countered them as best they could. What’s troubling is that the other conservative justices [Roberts, Kavanaugh] jumped in to join the pile-on. […]

      Barrett was not so obtuse; she earnestly worried that the statute was too broad and fished around for narrowing constructions. Yet she seemed unsatisfied with the many options Prelogar provided to keep the law limited to the most egregious interruptions of government business. […]

      These are the six I call the Roberts Court[esans]

    • harpie says:

      And here’s Chris Geidner:

      Conservative justices question overcriminalization now, with Jan. 6 case The case over whether the Justice Department is using a conspiracy law too broadly could have implications for Donald Trump’s federal charges in D.C.
      Chris Geidner 4/17/24

      On Tuesday, several conservative justices of the U.S. Supreme Court expressed a newfound concern about overcriminalization when the court heard arguments over the Justice Department’s efforts to prosecute people involved in the actions surrounding Jan. 6, 2021 — the culmination of the efforts to overturn the 2020 election. […]

  9. Rayne says:

    Funny how the right-wing railing against activist SCOTUS jurists has never encouraged counter-activism among right-wing federal jurists in the seven decades since Brown v. Board of Education.

    Like we’d never see a GOP president nominating and appointing right-wing activist federal judges, just SCOTUS jurists.

    We should therefore never be skeptical about federal judges’ ideology affecting their conduct and decisions.


  10. harpie says:

    Lund, comparing possession of a gun [2nd A] to that of a telephone [1stA] [wow]:
    [also note that “overwrought woman”]

    […] Imagine that an overwrought woman called her ex-boyfriend and threatened to scratch his eyes out. If a state court ordered her to refrain from making such calls and from physically attacking him, the federal statute at issue in Rahimi would automatically make her a felon if she kept a gun in her own home. And that would be true even if she had good reason to fear a violent attack from the ex-boyfriend or his criminal associates. But no court would uphold a statute that made this restraining order a sufficient basis on which to criminalize her possession of a telephone. We will soon find out whether the Supreme Court takes the Second Amendment as seriously as the First. […]

    • earlofhuntingdon says:

      “Overwrought?” Why not go all out and say, “hysterical,” with the added gynecological connotations? That’s what he meant.

    • ExRacerX says:

      meh. Unless this imaginary person was somehow physically employing said phone to “scratch his eyes out,” the gun analogy couldn’t be less apt.

  11. 90's Country says:

    Your articles always get me thinking, Ed, and for that I thank you.
    We drove down to south Alabama last weekend. I guess I hadn’t been there since the Pandemic,
    and it really hit me hard. It’s a state that has quite successfully warded off any hint of progress or
    change for my whole lifetime. The black people are still very black, as if the Civil War just ended, and the white people are in charge. Piity those who forget.
    It’s much like the conservative wing of the SCOTUS. As our old preacher would say at the end of a Sunday sermon: Brother, tell me this: Tell me who, with Christ supposedly in their heart, would want to measure modern society by a constitution that was written to ensure that slavery remain legal?
    I lived through the fifties and early sixties and don’t want to return. I have a brother who would, gladly. There has to be a balance between the two of us, between my side of the country and his, and in reality it needs to come from the SCOTUS. When the Court is dominated by ideologues who seem to abhor a culture built on kindness,
    when a former President who wants to escape the rule of law by being re-elected tells white supremacists and Neo-nazis that they can say out loud what they’re thinking, a former President who attacks anyone who disagrees with him, we’re in trouble.
    We’re in trouble.

  12. bloopie2 says:

    “Barrett was not so obtuse; she earnestly worried that the statute was too broad and fished around for narrowing constructions. Yet she seemed unsatisfied with the many options Prelogar provided to keep the law limited to the most egregious interruptions of government business. […]”

    Why does the court need to fully construe the statute, lay out all the boundaries? Can’t it just say, “In this case, we find that the conduct falls (or doesn’t fall) within the scope of the statute”, then let the lower courts use this instance as a guidepost in future cases with different facts? That happens a lot, doesn’t it?

    • earlofhuntingdon says:

      That’s what appellate courts used to do: apply the statute to an individual case. Does it provide adequate notice of what it means to violate it, does applying it here generate a fair and repeatable outcome in similar circumstances?

      Now, the Supreme Court majority, in particular, seems to look for ways to subvert the legislature’s will in order to impose its own.

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