• 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.

Mapp v. Ohio

Summary

In a 6–3 opinion by Justice Clark, the Supreme Court extended the exclusionary rule to the states, finding that “all evidence obtained by searches and seizures in violation of the Constitution is, by [the Fourth Amendment], inadmissible in a state court.”

Analysis

The Mapp case is activist because the Court  abused precedent and played legislator to create in state courts the right of a defendant to exclude evidence obtained illegally. Creating such a right allows the Court to circumvent the purposely strenuous process for amending the Constitution.

In Weeks v. United States, the Court held that in federal proceedings involving illegally obtained evidence, such evidence should not aid “[t]he efforts of the courts and their officials to bring the guilty to punishment” because such assistance would render meaningless Fourth Amendment protections against searches and seizures. States, on the other hand, remained free to enforce Fourth Amendment protections by means other than exclusion of illegally obtained evidence. However, Justice Clark’s opinion, overturning a prior decision of the Court in Wolf v. Colorado, 338 U.S. 25 (1949), ended state prerogative and applied the exclusionary rule to the states as an “essential part” of the Fourth and Fourteenth Amendments. 

The Fourth and Fourteenth Amendment rights could have been vindicated without setting the criminal free because the constable blundered.  Such remedies would include tort or civil rights actions for the constitutional injury, or even criminal prosecutions for officers who maliciously violate the Fourth Amendment.  By imposing a remedy without firm constitutional basis, the Mapp decision allowed countless criminals to go free because of police mistakes.

Case Basics

date06/19/1961

Court & Reporter NumberSupreme Court, 367 U.S. 643

Type(s) of Activism
  • Playing Legislator
  • Abusing Precedent
Area(s) of law
  • Fourth Amendment
Opinion(s)
Majority
  • Hugo Lafayette Black
  • William J. Brennan
  • Tom C Clark
  • William Orville Douglas
  • Earl Warren
Concurrence
  • Hugo Lafayette Black
  • William Orville
  • Douglas Potter Stewart
Dissent
  • Felix Frankfurter
  • John Marshall Harlan II
  • Charles Evans Whittaker