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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.

Fierro v. Gomez


The Ninth Circuit ruled unanimously that California’s method of capital punishment by cyanide gas was cruel and unusual punishment, therefore violating the Eighth Amendment.  Writing for the three-judge panel, Judge Harry Pregerson affirmed the district court’s findings that this method of execution caused extreme, long-lasting pain, which “evolving standards of decency” require the court to strike down.


This case is activist because the panel interprets the Eighth Amendment in a “flexible and dynamic manner,” according to “evolving standards of decency,” thus completely ignoring the original meaning of the text.  Although the Court had never ruled on this method of capital punishment, Judge Pregerson exercised the Living Constitutionalism strain of activism to decide that even though the Court had previously ruled that a Washington state method of execution by hanging (Campbell v. Wood, 18 F.3d 662 (9th Cir.1994)) was not cruel and unusual, the use of lethal gas for executions was.  Though rejecting other forms of extra-Constitutional arguments such as “legislative trends,” Judge Pregerson also rejects the Eighth Amendment’s original meaning, arguing instead that the infliction and duration of pain supersedes other considerations of what is “cruel and unusual.”  In doing so, he also shows himself to be Playing Favorites, demonstrating obvious sympathy for the criminals facing execution.  By basing his ruling on pain and the evolving standards of what are acceptable levels, Judge Pregerson opens the door to arbitrary decisions by judges of what is or is not constitutional for criminal punishment.

The Court should instead have looked to the original American understanding of the phrase “cruel and unusual,” which applied only to those methods considered torturous at the time of the Constitution’s ratification, such as pillorying and decapitation.  Doing so would have offered a more concrete standard of determining the constitutionality of capital punishment methods, thereby restraining favoritism and the arbitrary exercise of judicial power.

Case Basics


Court & Reporter NumberNinth Circuit, 77 F.3d 301

Type(s) of Activism
  • Playing Favorites
  • Living Constitutionalism
Area(s) of law
  • Criminal Law
  • Melvin Brunetti
  • Thomas G. Nelson
  • Harry Pregerson