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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.

Malesko v. Correctional Services Corp.


In an opinion by Sotomayor, the Second Circuit extended the application of Bivens v. Six Unknown Fed. Narcotics Agents (which recognized an implied cause of action for damages against individual federal officers alleged to have violated a citizen's constitutional rights), to permit recovery against a private corporation acting pursuant to a contract with the federal government.


This case is activist because the court abuses precedent, expanding a judicially created cause of action to encompass entities beyond the scope of those recognized by the Supreme Court.  Bivens was itself an activist decision by the Supreme Court, for it created a cause of action against individual federal officers absent express authorization by Congress.  Yet the Supreme Court has construed Bivens narrowly and applied it only in specific and limited circumstances, Despite the existence of parallel tort remedies available to prisoners held by private corporations that are unavailable to prisoners housed in government facilities, Judge Sotomayor’s opinion seeks to create yet another remedy by expanding Bivens such that it would permit a cause of action not just against individual federal officers, but also against corporations acting under contract with the federal government.  Bivens has never been interpreted this broadly by the Supreme Court.  The Court has recognized that the purpose of Bivens is to deter individual federal officers from committing constitutional violations, and at the time of this case it had already rejected an attempt to expand Bivens to permit claims against federal agencies. 

The Supreme Court, in a 5-4 decision, found Judge Sotomayor’s reasoning in Malesko unpersuasive and out-of-step with precedent and reversed her decision. 534 U.S. 61 (2001).

Case Basics


Court & Reporter NumberSecond Circuit, 229 F.3d 374

Type(s) of Activism
  • Abusing Precedent
Area(s) of law
  • Corporate Law
  • Rosemary S. Pooler
  • Sonia M. Sotomayor