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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.

Roe v. Wade

Summary

In a 7-2 opinion by Justice Harry Blackmun, the Court ruled that a right to privacy under the Due Process Clause of the Fourteenth Amendment guarantees a woman’s right to an abortion.  The Due Process Clause protects a broad right to privacy that is also found in the Ninth Amendment and the penumbras of the Bill of Rights.  This “substantive due process” right to privacy permits a woman to terminate her pregnancy for any reason during the first trimester.  Subsequent to approximately the end of the first trimester, the state may reasonably regulate abortions in ways related to maternal health.  After viability, the state may regulate or proscribe abortions, but it must permit them if found necessary to preserve the life or health of the mother, an exception which was expanded in Roe’s companion case, Doe v. Bolton.

Analysis

This case is activist because the Supreme Court relies upon notions of living constitutionalism, invoking the doctrine of “substantive due process” to create a right that is nowhere to be found in the text of the Constitution.  This doctrine, which was established in Dred Scott v. Sandford, is the prime example of judges reading 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 Due Process Clause, which is now being used by judges as a “judicial wildcard,” was simply meant to protect the citizens from government abuse by ensuring that no one be deprived of life, liberty, or property except by a fair process.  The fact that the Court has used the word “substantive” to describe a clause that is clearly about process creates an anachronism that defies language and logic.  The Court in Roe wields the Clause to support abortion rights without any reasoned justification: after citing previous Supreme Court cases that erroneously established a broad constitutional right to privacy, the Court blithely asserted that this right “is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.” 

The opinion, which received a wave of criticism from those on both sides of the abortion debate, is infamous not only for its foundationless assertions about the meaning of the Due Process Clause, but also for its flawed historical analysis.  In an attempt to evaluate societal opinions about abortion throughout history, Blackmun looks to ancient societies, such as the Persian Empire, as well as the views of modern American lobbying organizations, but completely skips over the state of abortion regulation at the time of the adoption of the Fourteenth Amendment.  Conveniently so.  In 1868 "there were at least 36 laws enacted by state or territorial legislatures limiting abortion,” stated Justice William Rehnquist in his dissent.

In his dissent, Justice Byron White accurately described this decision as “an exercise of raw judicial power.”  Under the guise of constitutional interpretation, the activist majority seized from the American people their ability to decide this controversial issue through the democratic process.

Case Basics

date01/22/1973

Court & Reporter NumberSupreme Court, 410 U.S. 113

Type(s) of Activism
  • Living Constitutionalism
Area(s) of law
  • Privacy Rights
  • Due Process
Opinion(s)
Majority
  • Harry A. Blackmun
  • William J. Brennan
  • Warren Earl Burger
  • William Orville Douglas
  • Thurgood Marshall
  • Lewis Franklin Powell, Jr.
  • Potter Stewart
Concurrence
  • Warren Earl Burger
  • William Orville Douglas
  • Potter Stewart
Dissent
  • William H. Rehnquist
  • Byron R. White