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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.

Kennedy v. Louisiana


In a 5-4 opinion by Justice Souter, the Court ruled that the Eighth Amendment bars the imposition of the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim’s death.  In assessing the “evolving standards of decency that mark the progress of a maturing society,” the Court rejected Louisiana’s argument that society’s standards are evolving to embrace capital punishment for the crime of child rape, as evidenced by the fact that 6 states had passed laws to that effect, and instead focused on the fact that capital punishment is not available for child rape in 45 jurisdictions. From this, the Court identified a national consensus on the question.

Next, the Court relied upon its “independent judgment” regarding the “evolving standards” of decency, and thereby drew a distinction between intentional first-degree murder and non-homicide crimes. 

After the decision was issued, it came to light that Congress enacted a federal statute in 2006 permitting the death sentence under the Uniform Code of Military Justice for rape of a minor.  Despite the fact that this national law undercut any theory of a national consensus, the Court nonetheless denied a request for rehearing.


This case is activist because the judges engaged in judicial imperialism, citing their own “independent judgment” as authoritative and, following the past precedent of other activist cases, relied on the so-called Living Constitution to make the Constitution comport with their self-described enlightened sensibilities

The Court’s “independent judgment” is shaped by policy considerations that are irrelevant to the Eighth Amendment.  For example, the majority opinion concluded that imposing the death penalty on child rapists is not actually in the interest of the victim, in part because it may be more painful for the child to testify knowing that the prosecution is seeking death for the accused.  Additionally, execution of rapists may “remove a strong incentive for the rapist not to kill the victim.”  While these are important policy questions for state legislators to consider as they are crafting laws, they are irrelevant to the question of whether such a law would violate the Eighth Amendment.  The notion that judges should insert their own policy predilections into the law is an outright abuse of the judicial power.

The Court’s finding of a national consensus was particularly weak here, given the recently enacted federal law brought to the Court’s attention on the motion for rehearing.  As Justice Scalia noted in his opinion respecting the denial of rehearing:

 I am voting against the petition for rehearing because the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority's decision in this case. The majority opinion, after an unpersuasive attempt to show that a consensus against the penalty existed, in the end came down to this: “[T]he Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” Of course the Constitution contemplates no such thing; the proposed Eighth Amendment would have been laughed to scorn if it had read “no criminal penalty shall be imposed which the Supreme Court deems unacceptable.” But that is what the majority opinion said, and there is no reason to believe that absence of a national consensus would provoke second thoughts.

The Court’s living constitutionalist doctrine of “evolving standards” is perfectly standardless, and provides courts with almost limitless discretion.  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, 554 U.S. 407

Type(s) of Activism
  • Living Constitutionalism
  • Judicial Imperialism
Area(s) of law
  • Criminal Law
  • Stephen G. Breyer
  • Ruth Bader Ginsburg
  • Anthony M. Kennedy
  • David H. Souter
  • John Paul Stevens
  • Samuel A. Alito, Jr.
  • John G. Roberts, Jr.
  • Antonin Scalia
  • Clarence Thomas