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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.

Atkins v. Virginia


In a 6-3 opinion by Justice Stevens, the Court ruled that the Eighth Amendment’s bar on cruel and unusual punishment, interpreted according to the “evolving standards of decency,” prohibits states from imposing the death penalty on “mildly” mentally retarded criminals—which would include “those defendants who indisputably are competent to stand trial, aware of the punishment they are about to suffer and why, and whose mental retardation has been found an insufficiently compelling reason to lessen their individual responsibility for the crime.”


This case is activist because the judges relied on the so-called Living Constitution to make the Constitution comport with their self-described enlightened sensibilities.  They also imported foreign law into Eighth Amendment jurisprudence, and engaged in judicial imperialism, citing their own “independent judgment” as authoritative..

The Court’s living constitutionalist doctrine of “evolving standards” is perfectly standardless, and provides courts with almost limitless discretion.  The Court argued that there is a national consensus against executing the mentally retarded.  They reached this determination by evaluating polling data and the opinions of professional and religious organizations, and by observing a “direction of change” in state legislation.

Polling data and opinions of professional and religious organizations are useful to policymakers, but they say very little about whether a punishment is cruel and unusual.  This “evidence” is better taken by the legislatures, many of which reviewed it and determined that the death penalty was still appropriate.

As for the direction of change in state laws, the Court relied upon the fact that 18 states had recently enacted legislation barring the execution of the mentally retarded.  However, as Justice Scalia notes in dissent, those 18 states constituted only 47% of the 38 states that permit capital punishment.  This is hardly sufficient evidence of a “national consensus” sufficient to constitutionally limit legislatures from utilizing a particular form of punishment.

The Court displayed a further misunderstanding of its own role by citing foreign law when evaluating these “evolving standards.”  Rather than basing their ruling on the original meaning of the Eighth Amendment, or even accurately assessing the domestic consensus, the majority instead looked to foreign standards.  As Scalia noted in his dissent, “[W]here there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution.”. 

And finally, the Court placed great stock in its own independent judgment, finding that objective evidence does not “wholly determine” the controversy, but rather that the Court’s own judgment must be brought to bear, by asking in a case of consensus whether there is “reason to disagree with the judgment reached by the citizenry and its legislators.”  The notion here that judges should use their own policy predilections to second-guess the legislatures is an outright abuse of the judicial power.

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, 536 U.S. 304

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