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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.

Lemon v. Kurtzman


In an 8–0 opinion authored by Chief Justice Burger, the Supreme Court declared unconstitutional two separate state acts providing funding for nonpublic schools. Most of the would-be beneficiaries of the acts were students attending Roman Catholic schools; thus, the acts imposed restrictions and monitoring to ensure nonreligious uses of the state funding. The Court invented a three-part test to determine whether a statute withstands Establishment Clause judicial scrutiny: (1) whether an act has a “clear secular legislative purpose”; (2) whether its “principal or primary effect . . . neither advances nor inhibits religion” and; (3) whether it fosters “excessive government entanglement with religion.” The Court found that the state statutes violated prong three of the Lemon test because the very restrictions and precautions required by the acts to protect against government becoming involved with religion created an excessive entanglement between religion and the state governments.


The Lemon opinion is activist because it created a manipulable test that allowed judges to play legislator, weighing policy considerations above the requirements of the law. The language “Congress shall make no law respecting an establishment of religion…” in the First Amendment was originally meant to prevent the establishment of a national religion or governmental favoritism of one religious sect over another. More recently, however, the Supreme Court has interpreted the Establishment Clause to mean a complete separation between government and religion. The Lemon test provided the Court a vehicle with which to decide whether a statute keeps government and religion “separate enough”—a highly subjective question which spawned endless litigation and allowed judges to inject their policy preferences.

The Lemon test has been criticized and revived numerous times by the Court.Justice Scalia likened the Lemon test to a “ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.” It is “easy to kill,” allowing the Supreme Court to apply the test when the Court wishes to condemn a particular practice, ignore the test when the Court wishes to allow a practice, or simply refer to the test as a helpful guide. Lamb’s Chapel v. Moriches Union Free School District, 508 U.S. 384, 398-99 (1993) (Scalia, J., concurring). The inconsistent application of the test led to great uncertainty, and concomitantly chilled legitimate religious expression clearly outside the legitimate boundary of the Establishment Clause.

Case Basics


Court & Reporter NumberSupreme Court, 403 U.S. 602

Type(s) of Activism
  • Playing Legislator
Area(s) of law
  • First Amendment
  • Harry A. Blackmun
  • Warren Earl Burger
  • William J. Brennan
  • William Orville Douglas
  • Potter Stewart
  • Byron R. White
  • Hugo Black
  • John M. Harlan
  • William O. Douglas
  • Byron R. White
  • William J. Brennan