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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.

Roper v. Simmons


The 5-4 majority ruled that the execution of a 17 year-old murderer violates the Eighth Amendment prohibition on “cruel and unusual punishment” because it is inconsistent with “the evolving standards of decency that mark the progress of a maturing society.”  In addition to surveying trends in state legislation, Justice Kennedy in his majority opinion also relies on the Court’s “independent judgment” and international law to conclude that these evolving standards prohibit execution of juveniles.


In the infamous case of Roper v. Simmons, the Court utilizes a panoply of activist “tools.”  The judges engage in judicial imperialism, citing their own “independent judgment” as authoritative.  They also imported foreign law into Eighth Amendment jurisprudence, clearly unable to justify their conclusion with U.S. law.  Further, following the past precedent of other activist cases, the judges relied on the so-called Living Constitution to make the Constitution comport with their self-described enlightened sensibilities

In setting forth the Court’s “independent judgment,” Kennedy asserts his own apparent expertise in sociology, attempting to explain the general differences between adults and juveniles.  Among other things, he stated that “[J]uveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.”  Kennedy’s references to sociological studies and his own observations about youth are clearly policy judgments that do not fall within the realm of constitutional interpretation.  Weighing these kind of policy considerations does have a place in answering the question of whether this punishment is appropriate, but the authority to make these detailed policy determinations—as well as the machinery for proper fact-finding hearings, and the political check on the ultimate judgment—rests with the legislatures, whose respective judgments the Court is trammeling.

Justice Kennedy further reveals his misunderstanding of the judiciary’s role when he looks to international opinion to assess whether the “evolving standards of decency” forbid the execution of minors.  He demonstrates this “international consensus” in part by citing a treaty to which the United States is expressly not a signatory.  While thinly conceding that international law isn’t controlling on this matter, the Court looks to foreign law to find confirmation of its own preferred conclusions.  Rather than exploring the original meaning of the Eighth Amendment, the five justices of the majority instead frolic and detour through evidence of foreign standards, which they use to confirm their own policy preferences. 

The Court’s living constitutionalist doctrine of “evolving standards” is perfectly standardless, and provides courts with almost limitless discretion.  At the time of the Amendment’s enactment, “cruel and unusual punishment” meant torturous punishments, such as decapitation or pillorying, that were actually uncommon in colonial America.  The Court’s rulings in Eighth Amendment cases such as this have stretched the meaning of the Eighth Amendment to the point that the words “cruel and unusual” functionally mean whatever happens to offend a majority of the justices.

Case Basics


Court & Reporter NumberSupreme Court, 543 U.S. 551

Type(s) of Activism
  • Playing Legislator
  • Living Constitutionalism
  • Importing Foreign Law
Area(s) of law
  • Criminal Law
  • Stephen G. Breyer
  • Ruth Bader Ginsburg
  • Anthony M. Kennedy
  • David H. Souter
  • John Paul Stevens
  • Ruth Bader Ginsburg
  • John Paul Stevens
  • Sandra Day O'Connor
  • William H. Rehnquist
  • Antonin Scalia
  • Clarence Thomas