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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.

United States v. Virginia


In a 7-1 opinion by Justice Ruth Bader Ginsburg, the Supreme Court ruled that the Commonwealth of Virginia violated the Equal Protection Clause by maintaining the publicly funded Virginia Military Institute as an all-male institution.  The Court reasoned that Virginia did not show an “exceedingly persuasive justification” for excluding all women from the citizen-soldier training and argued that Virginia’s proposed remedy of a parallel institution for females did not provide equal opportunity.  Justice Thomas recused himself.


This case is activist because the judges play legislator, creating a new “skeptical scrutiny” category which allows them to functionally constitutionalize their policy preferences.  As Scalia says in his dissent, “Today [the Court] enshrines the notion that no substantial educational value is to be served by an all-men’s military academy”—a judgment that should be made by the people of the Commonwealth of Virginia.  The Equal Protection Clause of the Fourteenth Amendment was enacted to ensure that the states and their agents would secure the full and equal benefit of the laws for all persons without arbitrarily enforcing laws against individuals; it was not intended to eliminate all distinctions, gender-based or otherwise, that will serve a legitimate purpose.

Case Basics


Court & Reporter NumberSupreme Court, 518 U.S. 515

Type(s) of Activism
  • Playing Legislator
Area(s) of law
  • Equal Protection
  • Stephen G. Breyer
  • Ruth Bader Ginsburg
  • Anthony M. Kennedy
  • Sandra Day O'Connor
  • David H. Souter
  • John Paul Stevens
  • William H. Rehnquist
  • Antonin Scalia