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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.

Morrison v. Olson


In a 7-1 decision written by Chief Justice Rehnquist, the Court upheld the constitutionality of the Independent Counsel statute against claims that the office violated various Constitutional clauses that preserved the separation of powers, including he Executive Vesting Clause (Article II, Section I, Clause I) and the Inferior Officers Appointment Clause (Article II, Section 2, Clause 2).The Court found that because the Independent Counsel was subject to “good cause” removal by the Attorney General, the President had some control over the Executive Branch office – and therefore the executive power to prosecute had not been seized by the legislative branch.


The Supreme Court’s decision in Morrison is activist because it abuses precedent, extending the error in Humphrey’s Executor v. United States, which (erroneously) upheld the limitation on the President’s authority to remove Federal Trade Commissioners except for good cause based upon the premise that the agency functions were in part legislative and in part judicial, and “wholly disconnected from the executive department,” to an officer whose functions are wholly executive. The majority also contorts the text of the Constitution, failing to give effect to the words.  The Executive Vesting Clause states:  “The executive Power shall be vested in a President of the United States.”  As Justice Scalia aptly notes in his dissent:

[T]his does not mean some of the executive power, but all of the executive power. . . . [T]he decision of the Court of Appeals invalidating the present statute must be upheld on fundamental separation-of-powers principles if the following two questions are answered affirmatively: (1) Is the conduct of a criminal prosecution (and of an investigation to decide whether to prosecute) the exercise of purely executive power? (2) Does the statute deprive the President of the United States of exclusive control over the exercise of that power? Surprising to say, the Court appears to concede an affirmative answer to both questions, but seeks to avoid the inevitable conclusion that since the statute vests some purely executive power in a person who is not the President of the United States it is void.

Indeed, though the majority agrees that the President possesses prosecutorial power by virtue of the Constitution’s Executive Vesting Clause, they assert that an executive office which the President has no control over does not “unduly trammel on executive authority” because the Attorney General, who is appointed by the President, can fire the Independent Counsel for “good cause.” Yet, as Justice Scalia notes in one of the most oft-quoted statements in his dissent, “[t]his is somewhat like referring to shackles as an effective means of locomotion[,]” noting that the dispute in Humphrey’s concerned the conceded limitation on executive power created by a good-cause removal requirement. 

Case Basics


Court & Reporter NumberSupreme Court, 487 U.S. 654

Type(s) of Activism
  • Contorting Text
  • Abusing Precedent
Area(s) of law
  • Separation of Powers
  • Harry A. Blackmun
  • William J. Brennan
  • Thurgood Marshall
  • Sandra Day O'Connor
  • William H. Rehnquist
  • John Paul Stevens
  • Byron R. White
  • Antonin Scalia