• 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.

Reynolds v. Sims

Summary

In an 8-1 decision written by Chief Justice Earl Warren, the Court ruled that the Equal Protection Clause of the Fourteenth Amendment, under the principle of “one man, one vote,” requires substantially equal legislative representation for all citizens in a given state. The Court held that “the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis[,]” thereby prohibiting the apportionment of state legislatures based upon geographic or political subdivisions—in this case, counties.

Analysis

This case is activist because the Court sub silentio relies upon the Living Constitution doctrine, creating a “principle” found nowhere in the Constitution’s text or tradition. The Court abuses precedent, building upon its error in Baker v. Carr, in which the Court arrogates unto itself the authority to rule upon questions properly reserved to the politically responsible branches, establishing the broad rule that Equal Protection prohibits apportioning representatives by geographic or political subdivisions—a rule that finds no quarter in the Constitution’s text or history..

In putatively interpreting the requirements of the Equal Protection Clause, the majority fails to even address the full text of the Fourteenth Amendment, the second section of which provides a remedy if states choose, as Section 2 acknowledges to be within their authority, to deny “or in any way” abridge the right to vote in cases not dealing with rebellion or crime. Furthermore, if the meaning of Equal Protection were as broad as the Reynolds court claims, then the 15th Amendment, which prohibits denying or abridging votes on account of race, would be wholly superfluous, as the Equal Protection Clause would fully accomplish this end.

Historically, there is no evidence at the time of the adoption of the 14th Amendment’s that the term Equal Protection applied to political questions, like how a government chose to allocate representatives. Indeed, the widespread use of representation based on geographic or political subdivisions in the states, and the “Great Compromise,” which granted each state two Senators and at least one Representative regardless of population—stand in awkward opposition to the Court’s novel reading.

Case Basics

date06/15/1964

Court & Reporter NumberSupreme Court, 377 U.S. 533

Type(s) of Activism
  • Living Constitutionalism
  • Abusing Precedent
Area(s) of law
  • Election Law
  • Equal Protection
Opinion(s)
Majority
  • Hugo Lafayette Black
  • William J. Brennan
  • William Orville Douglas
  • Arthur Joseph Goldberg
  • Earl Warren
  • Byron R. White
Concurrence
  • Tom C Clark
  • Potter Stewart
Dissent
  • John Marshall Harlan II