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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 Steelworkers v. Weber


In a 5-2 opinion by Justice Brennan, the Supreme Court held that provisions of Title VII of the Civil Rights Act of 1964 that make it unlawful to discriminate because of race in hiring do not “condemn all private, voluntary, race-conscious affirmative action plans.”  The case addressed Kaiser Aluminum & Chemical Corp’s affirmative action plan, which was enforced at 15 Kaiser plants with the goal that each plant would eventually have a percentage of black skilled craft employees approximated the percentage of blacks in their respective local labor forces.  Until this goal was met, Kaiser’s newly established craft training program required that at least 50 percent of the new trainees were to be black, with selection being made on the basis of seniority.  Weber, a white employee, instituted a class action against Kaiser, claiming that junior black employees were receiving preferential treatment to senior white employees.


This case is activist because the judges strained the plain text of the statute to achieve their desired ends, bending terms to the point of breaking. The statute specifically states that it is “unlawful” for “any employer” to discriminate based on race “in, any program established to provide apprenticeship or other training.” Despite this clear language, the Court interprets the statute to permit what it explicitly forbids. The Court’s disregard for the plain language and their erroneous reading of the legislative history, taken together, led them to conclude that Title VII allows policies that discriminate against whites.

In the majority opinion, the Court admits to ignoring the text of Title VII, asserting that “Weber’s reliance upon a literal construction of the statutory provisions…is misplaced.” The Court argues that, despite what the plain language suggests, Title VII’s legislative history reveals that “Congress’ primary concern” in enacting Title VII was with “the plight of the Negro in our economy.” Justice William Rehnquist in his dissent rebutted this argument with ease: “To be sure, the reality of employment discrimination against Negroes provided the primary impetus for passage of Title VII. But this fact by no means supports the proposition that Congress intended to leave employers free to discriminate against white persons.”

Case Basics


Court & Reporter NumberSupreme Court, 443 U.S. 193

Type(s) of Activism
  • Contorting Text
Area(s) of law
  • Civil Rights and Racial Preferences
  • Harry A. Blackmun
  • William J. Brennan
  • Thurgood Marshall
  • Potter Stewart
  • Byron R. White
  • Warren Earl Burger
  • William H. Rehnquist