• Heritage Action
  • More
Return to Rule of Law Initiative

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.

Gonzales v. Raich


In a 6-3 decision, the Supreme Court ruled that the Commerce Clause empowered Congress to prohibit the purely local activities that may affect interstate commerce. The case was brought by two California citizens who had been charged under the Controlled Substances Act for their home-grown, non-commercial use of medical marijuana. They argued that Congress possessed no power to regulate such actions and that it should properly be the role of the state to legislate on the issue—which California did in passing a statewide initiative permitting medical marijuana. The Court did not agree.


As in Wickard and Katzenbach, this case is activist because the Court abuses precedent, thereby reinforcing grave errors, and strains the text of the Commerce Clause to its breaking point to uphold a federal statute that regulates purely local activities. In the 1990s, the Supreme Court overturned several Congressional acts on the grounds that they were not a reasonable use of the commerce power. U.S. v. Lopez and U.S. v. Morrison were the first cases to do so in over sixty years, and many believed they prefigured a “federalism revolution” on the Court. Raich served as a setback to this would-be trend. The majority opinion, by Justice Stevens, states that the Court’s precedent compels this result: “Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce.” In a dissent, Justice Thomas rebuts that argument: “The majority’s rewriting of the Commerce Clause seems to be rooted in the belief that, unless the Commerce Clause covers the entire web of human activity, Congress will be left powerless to regulate the national economy effectively.” He follows that logic to its inevitable end: “If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 states.”

Case Basics


Court & Reporter NumberSupreme Court, 545 U.S. 1

Type(s) of Activism
  • Contorting Text
  • Abusing Precedent
Area(s) of law
  • Federalism
  • Stephen G. Breyer
  • Ruth Bader Ginsburg
  • Anthony M. Kennedy
  • David H. Souter
  • John Paul Stevens
  • Antonin Scalia
  • Sandra Day O'Connor
  • William H. Rehnquist
  • Clarence Thomas