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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.

Tashjian v. Republican Party of Connecticut

Summary

In a 5-4 opinion by Justice Thurgood Marshall, the Supreme Court held that a Connecticut statute requiring voters in any political party primary to be registered members of that party violates the political party's First and Fourteenth Amendment rights to define its associational boundaries.

Analysis

This case is activist because the Court abused precedent.  In doing so, the majority engaged in precedential revisionism, misreading their own precedent in order to arrive at a desired result.  Supreme Court precedent has established that the First Amendment contains an implicit right to expressive association—the right of people to associate with one another to engage in exercising the First Amendment rights that are explicitly listed.  This would include, for example, the right of people to associate to exercise their freedom of speech at a civil rights protest.  In light of this, one can see the implausibility of the Court’s First Amendment associations claim.  As Justice Scalia points out in his dissent, “The Connecticut voter who, while steadfastly refusing to register as a Republican, casts a vote in the Republican primary, forms no more meaningful an ‘association’ with the Party than does the independent or the registered Democrat who responds to questions by a Republican Party pollster.  If the concept of freedom of association is extended to such casual contacts, it ceases to be of any analytic use.”  To be clear, the Court attempts to use the right of association to justify their decision in a case that involves voters specifically choosing not to associate with a political party, the nature of which expressly excludes it from the constitutional claim made here. The majority misinterpreted the First Amendment and its established doctrine of expressive association in order to place restrictions on a state’s conducting of elections.

Case Basics

date12/10/1986

Court & Reporter NumberSupreme Court, 479 U.S. 208

Type(s) of Activism
  • Abusing Precedent
Area(s) of law
  • Election Law
  • First Amendment
Opinion(s)
Majority
  • Harry A. Blackmun
  • William J. Brennan
  • Thurgood Marshall
  • Lewis Franklin Powell, Jr.
  • Byron R. White
Dissent
  • Antonin Scalia
  • John Paul Stevens
  • Sandra Day O'Connor , William H. Rehnquist