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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.

Trop v. Dulles


The Supreme Court held by a 5-4 majority that the federal government violated the Eighth Amendment prohibition on cruel and unusual punishment when it imposed forfeiture of citizenship on a soldier who deserted during wartime.  In his majority opinion, Chief Justice Earl Warren opined that the words of the Amendment are not precise, nor is their scope static; the Amendment draws its meaning from the “evolving standards of decency that mark the progress of a maturing society.”  He further reasoned that citizenship is a “fundamental right” that is “not subject to the general powers of the national government…and the deprivation of citizenship is not a weapon that the government may use to express its displeasure at a citizen’s conduct.”


This case is activist because the judges rely on the so-called Living Constitution to make the Constitution comport with their self-described enlightened sensibilities.  Rather than carefully examining the Eighth Amendment’s text and original meaning, they instead looked to the “evolving standards of decency” to determine that the punishment of denationalization was disproportionate to the crime.  In his dissent in Thompson v. Oklahoma, Justice Scalia aptly described the danger of this doctrine: “[T]he risk of assessing evolving standards is that it is all too easy to believe that evolution has culminated in one’s own views.”

The “evolving standards of decency” doctrine has become part and parcel of Eighth Amendment jurisprudence and has been used to justify prohibitions that stray far from the originally intended scope of the Amendment.  At the time of the Amendment’s enactment, “cruel and unusual punishment” meant torturous punishments, such as decapitation or pillorying, that were actually uncommon in colonial America.  The Court’s rulings in Eighth Amendment cases such as this have stretched the meaning of the Amendment to the point that the words “cruel and unusual” functionally mean whatever happens to offend a majority of the justices.   

Case Basics


Court & Reporter NumberSupreme Court, 356 U.S. 86

Type(s) of Activism
  • Living Constitutionalism
Area(s) of law
  • Criminal Law
  • Hugo Lafayette Black
  • William Orville Douglas
  • Earl Warren
  • Charles Evans Whittaker
  • Hugo Lafayette Black
  • William Orville Douglas
  • William J. Brennan
  • Harold Hitz Burton
  • Tom C Clark
  • Felix Frankfurter
  • John Marshall Harlan II