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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.

Hudson v. McMillian


In a 7-2 opinion by Justice Sandra Day O’Connor, the Supreme Court ruled that an inmate beaten by prison guards does not need to demonstrate “significant injury” in order to establish that his Eighth Amendment protection from cruel and unusual punishment has been violated.  To establish an Eighth Amendment violation, the Court must merely show that the use of force was “wanton and unnecessary.”  According to the Court, this conclusion is consistent with the “evolving standards of decency that mark the progress of a maturing society,” a standard which the Court has come to use regularly in Eighth Amendment cases.


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; the justices ruled based on the judicially-invented “evolving standards of decency” rather than looking to the original meaning of the Amendment.  In his dissent, Justice Clarence Thomas reminds his colleagues that their duty is simply to interpret the Eighth Amendment, and to keep in mind that there are other legal remedies for this injury. He admonished them to distinguish between unconstitutional behavior and behavior that may be wrong but is nonetheless not addressed by the Amendment: “[A] use of force that causes only insignificant harm to a prisoner may be immoral, it may be tortious, it may be criminal, and it may even be remediable under other provisions of the Federal Constitution, but it is not cruel and unusual punishment.”  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, 503 U.S. 1

Type(s) of Activism
  • Living Constitutionalism
Area(s) of law
  • Criminal Law
  • Anthony M. Kennedy
  • Sandra Day O'Connor
  • William H. Rehnquist
  • David H. Souter
  • John Paul Stevens
  • Byron R. White
  • John Paul Stevens
  • Harry A. Blackmun
  • Antonin Scalia
  • Clarence Thomas