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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.

Humphrey's Executor v. United States


n a 9-0 opinion by Justice Sutherland, the Court upheld a provision of the Federal Trade Commission (FTC) Act, which specified that Commissioners serve seven-year terms and are removable only for “inefficiency, neglect of duty, or malfeasance in office.” The Court found that this provision prohibited the President from removing a Commissioner except for one of the causes named, but concluded that this restriction did not violate the Constitution, nor did it contradict the precedent of Myers v. United States. Unlike Myers, the Court reasoned that FTC exercised no executive power, but instead was an agent of the legislature and the judiciary exercising quasi-legislative and quasi-judicial power. The Court therefore concluded that permitting the President to remove Commissioners would threaten the independence of the Commission.


The decision is activist because the Court abuses highly relevant precedent and contorts text. First, the Court abuses precedent by attempting to distinguish Myers—in which the Court found that Congress’s attempt to require Senate consent for the discharge of a postmaster violated the Executive Vesting Clause and the Presidents power to “take Care that the Laws be faithfully executed” under Article II—by stating that the FTC exercises no executive power.  However, the FTC has authority to file complaints against putative trade offenders—a function that is prosecutorial in nature—and prosecution is a quintessentially executive function.  Because the FTC performs executive functions (in addition to judicial and legislative), Myers is applicable.

Second, the Court contorts the text of the Constitution.  The Constitution vests all legislative power enumerated by the Constitution to Congress in Article I,  the executive power in a President in Article II, and the judicial power in one supreme court and such inferior courts as Congress establishes in Article III.  Nowhere in the Constitution is there grounds for the creation of quasi-legislative or quasi-judicial branches, and the idea of an agency that performed all three functions—legislative, executive, and judicial—as the FTC does, is precisely what the Founders and the text of the Constitution sought to avoid by separating the powers to the different branches.  By accepting this theory, which is often justified elsewhere under theories of living constitutionalism, the Court approves unaccountable independent agencies which operate beyond the confines of the constitutional separation of powers.

Case Basics


Court & Reporter NumberSupreme Court, 295 U.S. 602

Type(s) of Activism
  • Contorting Text
  • Abusing Precedent
Area(s) of law
  • Separation of Powers
  • George Sutherland