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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.

Missouri v. Jenkins


In an effort to address segregation in public schools in compliance with court directives, the Kansas City, Missouri School District (KCMSD) sought to institute an extensive and expensive school improvement program to attract more white students from the suburbs.  The KCMSD’s ability to raise taxes to support the project, however, was limited by Missouri state law.  The district court found that there was no alternative way to fund the project, and it ordered an increase in local property taxes for the 1991-92 fiscal year.  In an opinion authored by Justice White, the Supreme Court held that the federal district court did not have the authority to directly impose a tax increase.  However, it further determined that federal courts could require local governments to institute tax levies on their own and enjoin state laws that stand in the way of such levies.


This case is activist because the Supreme Court exercises judicial imperialism, expanding the power of the judiciary beyond its constitutional limits to encroach upon the purely legislative function of taxation.  In doing so, the judges plays legislator. Though judges may require parties to remedy injustices, including those of de jure segregation caused by public institutions, they may not impose a burden on taxpayers who had no presence or representation in the suit.  Such is a violation of those taxpayers’ right to due process of law, for it taxes them without their consent as expressed through their duly elected legislative representatives.  While the Court claims to reject the notion of judicially-imposed taxes by invalidating the district court’s direct imposition of a tax increase, it nevertheless implicitly accepts the notion by suggesting that courts may enjoin state tax laws to allow local governments to levy their own taxes.  Local governments are not sovereign entities—they derive all their authority, including the authority to tax, from sovereign state governments.  Therefore, when a local government does not have the authority to raise taxes under state law, any grant of such authority by the federal courts rests on the assumption that the courts possess that authority themselves.  There is no difference between the court directly imposing a tax and the court ordering a local government—which does not have independent taxation authority—to impose a tax contrary to the sovereign laws of the state in which it is located.  Indeed, this assertion of judicial power is even more troubling because it was not necessary to the decision of the case at hand.  Once the Court determined that the tax imposed by the district court must be reversed, there was no need for it to opine on the scope of judicial power in future cases regarding the levying of taxes.  The remainder of the opinion is therefore nothing but an example of the Court’s inability to restrain its activist ambitions.

Case Basics


Court & Reporter NumberSupreme Court, 495 U.S. 33

Type(s) of Activism
  • Playing Legislator
  • Judicial Imperialism
Area(s) of law
  • Civil Rights and Racial Preferences
  • Harry A. Blackmun
  • William J. Brennan
  • John Paul Stevens
  • Byron R. White
  • Thurgood Marshall
  • Anthony M. Kennedy
  • Sandra Day O'Connor
  • William H. Rehnquist
  • Antonin Scalia