• Heritage Action
  • Heritage Libertad
  • More
Return to Rule of Law Initiative

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.

Planned Parenthood v. Casey

Summary

Asked to address the issue of abortion again, the Supreme Court by a vote of 5-4 affirmed its 1973 decision of Roe v. Wade, which established a constitutional right to abortion under the Due Process Clause of the Fourteenth Amendment, albeit based on different reasoning. Explaining that this “substantive due process” right is found in the concept of “individual liberty” within the Due Process Clause, the Court infamously declared in the so-called “mystery clause”: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

The Court’s affirmation of Roe was based almost entirely on the doctrine of stare decisis—adherence to precedent. The majority opinion, authored by Justices O’Connor, Kennedy, and Souter, explained that Roe should not be overturned because a case should only be reversed if there is a “special reason over and above the belief that a prior case was wrongly decided.” But Casey applied stare decisis only to the broad outcome in Roe, not the reasoning.

The Court rejected Roe’s trimester framework and adopted an “undue burden” standard to determine whether a law violates a woman’s right to abortion. The Court used this standard to strike down the spousal notification requirement of the Pennsylvania statute being addressed.

Analysis

The activist nature of this case is so far-reaching that it encompasses both a staggering misinterpretation of constitutional terms and a flagrant disregard of the Court’s proper role.

First, the case is activist because the judges relied upon notions of living constitutionalism to read broad constitutional terms divorced from any textual or originalist moorings, thereby making them empty vessels into which they can pour any policy preferences they desire.  The doctrine of “substantive due process” cited in Casey has been known as the “judicial wildcard” for this very reason.  Here, the Court invented a definition for Due Process “liberty” out of whole cloth, without even thinking it necessary to connect this unprecedented definition with any history, law, or reasoned justification.  The so-called “mystery clause” from the Casey decision has unfortunately been cited in many later activist cases.

The case is also activist because the majority’s actions amount to judicial imperialism, expanding the judiciary beyond its constitutional limits.  The judges clearly engaged in judicial hubris, making claims of judicial supremacy by declaring that the Court has the authority to “decide” for the American people “their constitutional cases and speak before all others for their constitutional ideals.”  In the face of an onslaught of criticism of Roe from the American public, the Court audaciously demands silence by refusing to reconsider the case on its merits under the veil of respect for precedent, even though the judges themselves seem to suggest that the reasoning in Roe was dubious: “the reservations any of us may have in reaffirming the central holding of Roe are outweighed by the explication of individual liberty we have given combined with the force of stare decisis.” 

Though stare decisis is important to consider when addressing cases that have developed settled doctrines over time, this is clearly not such a case.  Roe was decided only nineteen years prior to Casey, and legal scholars across the political spectrum, including many who consider themselves pro-abortion, continue to decry Roe as one of the worst cases of all time.  One would think that this would be enough of a “special reason” to reconsider the case according to its merits. 

In this case, stare decisis was essentially used as a tool to abuse precedent: expanding on a prior error of the Court.  This is evident in that the Court threw out the reasoning of Roe, yet still found that they were bound by stare decisis.  The Court’s abuse of stare decisis not only reinforced the error that is Roe v. Wade, but it also left Supreme Court jurisprudence with the most confusing and misguided concept of Due Process liberty to date: the Casey “mystery” clause.  

Case Basics

date06/29/1992

Court & Reporter NumberSupreme Court, 505 U.S. 833

Type(s) of Activism
  • Living Constitutionalism
  • Abusing Precedent
  • Judicial Imperialism
Area(s) of law
  • Privacy Rights
  • Due Process
Opinion(s)
Majority
  • Harry A. Blackmun
  • Anthony M. Kennedy
  • Sandra Day O'Connor
  • David H. Souter
  • John Paul Stevens
Concurrence
  • Harry A. Blackmun
  • John Paul Stevens
Dissent
  • William H. Rehnquist
  • Antonin Scalia
  • Clarence Thomas
  • Byron R. White