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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.

Weeks v. United States


In a unanimous decision by Justice Day, the Supreme Court created the “exclusionary rule,” holding that the use of illegally seized evidence at federal trial violated the Fourth Amendment rights of the accused, and that use of such evidence at trial must be barred in the federal system.


The Weeks case is activist because the Court played legislator, creating a mandatory (and implicitly constitutional) remedy for Fourth Amendment search and seizure violations that is unsupported by the constitutional text and legal history and tradition. The Court held that in federal procedures where evidence is obtained illegally, such evidence should not aid “[t]he efforts of the courts and their officials to bring the guilty to punishment” because such assistance would render meaningless Fourth Amendment protections against searches and seizures. However, there are other possible remedies that would not set the criminal free because the constable blundered, including tort or civil rights actions for the constitutional injury, or even criminal prosecutions for officers who maliciously violate the Fourth Amendment.  This decision set the stage for the rule’s expansion to the states in Mapp, which, without firm constitutional basis, nonetheless allowed countless criminals to go free because of police mistakes.

Case Basics


Court & Reporter NumberSupreme Court, 232 U.S. 383

Type(s) of Activism
  • Playing Legislator
Area(s) of law
  • Fourth Amendment
  • William Rufus Day
  • Oliver Wendell Holmes, Jr.
  • Charles Evans Hughes
  • Joseph Rucker Lamar
  • Joseph McKenna
  • Mahlon Pitney
  • Willis Van Devanter
  • Edward Douglass White