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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.

Flast v. Cohen


In an 8–1 decision by Justice Warren, the Supreme Court granted standing to federal taxpayers challenging the constitutionality of the Elementary and Secondary Education Act of 1965. The taxpayers believed that the Act, which provided federal funding for textbooks and instructional materials for public and parochial schools, violated both the Establishment and Free Exercise Clauses in the First Amendment; they sought to enjoin the expenditures.

Forty-five years prior to Flast, the Court held that federal taxpayers had no standing with which to challenge a federal statute. Frothingham v. Mellon, 262 U.S. 447 (1923). The Court in Flast dutifully noted that this barrier “ha[d] never been breached.” However, the Court found that Establishment and Free Exercise challenges require special consideration and subsequently allowed the taxpayer army to scale the Frothingham wall. Justice Warren even created the “ladder” with which to do it: a two-part taxpayer standing test. First, the taxpayer must establish a logical link between his status as a federal taxpayer and the type of legislative enactment being attacked. Second, he must establish the “nexus” between his status and the exact nature of the alleged constitutional infringement.


This case is activist because the Court created a federal taxpayer standing test so that taxpayers who did not want their tax dollars to support the education of children in religious schools could challenge the funding statute. This new test allowed the justices to play legislator, weighing their policy considerations above the requirements of the law.

The justices also demonstrate judicial imperialism. Under Article III of the Constitution, the far-reaching arm of the Supreme Court may only extend to “cases” and “controversies,” making advisory opinions a jurisdictional cookie jar into which the Supreme arm cannot reach. Frothingham established that federal taxpayers contesting tax money spent on a federal statute do not have a “case” or “controversy” because they have no injury. A federal taxpayer’s “interest in the moneys of the treasury… is comparatively minute and indeterminable” and that “the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity.” Frothingham, 262 U.S. at 601.

The test created by the Court to overcome Frothingham not only demonstrates judicial activism at work, but it also allows taxpayers to retain different rights under the Establishment Clause than they do under any other constitutional provision. Justice Harlan noted this startling phenomenon, in addition to the Court’s implication that the Establishment Clause must then “fashion a more ‘specific’ limitation upon Congress’ powers than [do] the various other constitutional commands,” in his dissent.

Finally, the case demonstrates activist judicial policy preference because granting federal taxpayers standing to challenge the constitutionality of a federal statute seriously harms the separation of powers doctrine. Each separate but equal branch in the government owes a degree of deference to the others that the decisions each makes are constitutional. Here, the Court assumes that it will be a better judge of a statute’s constitutionality than will the Congress who enacted it.  

Case Basics


Court & Reporter NumberSupreme Court, 392 U.S. 83

Type(s) of Activism
  • Playing Legislator
  • Judicial Imperialism
Area(s) of law
  • Standing
  • Hugo Lafayette Black
  • William J. Brennan
  • William Orville Douglas
  • Abe Fortas
  • Thurgood Marshall
  • Potter Stewart
  • Earl Warren
  • Byron R. White
  • William Orville Douglas
  • Potter Stewart
  • Abe Fortas
  • John Marshall Harlan II