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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.

Austin v. Michigan Chamber of Commerce


In a 6-3 opinion, Justice Thurgood Marshall addressed the constitutionality of § 54(1) of the Michigan Campaign Finance Act, which prohibited corporations from making independent expenditures in support of or in opposition to candidates in elections for state offices. The Court found that the Chamber’s right of political expression can be limited by the “compelling state interest” of “preventing corruption,” which it defines in this case as “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation's political ideas.”  The Court accepted the state’s rationale for regulating this speech, namely that “corporate wealth can unfairly influence elections when it is deployed in the form of independent expenditures.”

The Supreme Court overruled Austin on January 21, 2010 in the case of Citizens United v. FEC, holding that the ruling violated First Amendment Free Speech rights. Click here to read the full opinion of Citizens United.


This case is activist because the judges played legislator, weighing policy considerations above the protections afforded in the Constitution. Here, the Supreme Court upholds restrictions on the speech of voluntary associations of individuals (i.e., corporations) based not on the previously accepted regulatory theories of quid pro quo corruption or even the appearance of corruption, but rather on the theory that too much speech by corporate entities would be unfair.  As Justice Scalia aptly put it in his dissent, “I dissent because [the principle that too much speech is an evil that the democratic majority can proscribe] is contrary to our case law and incompatible with the absolutely central truth of the First Amendment: that government cannot be trusted to assure, through censorship, the 'fairness' of political debate.  Even the majority recognizes that these associations of individuals do have First Amendment free speech rights—they just find that the government may determine who can speak, and how much, in order to assure fairness."

Case Basics


Court & Reporter NumberSupreme Court, 494 U.S. 652

Type(s) of Activism
  • Playing Legislator
Area(s) of law
  • Election Law
  • First Amendment
  • Harry A. Blackmun
  • William J. Brennan
  • Thurgood Marshall
  • William H. Rehnquist
  • Byron R. White
  • William J. Brennan
  • John Paul Stevens
  • Anthony M. Kennedy
  • Sandra Day O'Connor
  • Antonin Scalia