Judicial activism connotes the extent to which judges substitute their interpretations of constitutional provisions for those of other branches of government and their willingness to impose affirmative duties upon governmental bodies. Although applicable to judges of all federal and state courts, it is most often used in reference to the justices of the Supreme Court. The term is ordinarily used in an accusatory manner to ascribe to justices, whose decisions one opposes, an inclination to make law through policyoriented judicial decisions rather than following the literal language of the constitution and showing deference to the constitutional interpretations underlying legislative enactments.

Judicial activism is inevitably contrasted with judicial restraint. While activism is usually attributed to courts labeled “liberal,” most notably the Warren Court, it has also been an instrument of conservative courts. The Rehnquist Court is seen as pursuing a conservative political agenda through a result-oriented decision-making process that disregards precedents and diverges from clear constitutional language. Both courts are viewed as having moved from a judicial ideal of reaching decisions by attempting to discern the original intent of the framers of the Constitution, determined largely through historical sources and narrow readings of precedents, to a process that has expanded the power of judicial review and emphasizes the spirit of the Constitution, often in terms of contemporary social needs. This practice opens justices to the accusation that they have reached out to accept groundbreaking cases that they then decide in a partisan manner by arriving at conclusions imbued with political preference.

Judicial activism is predominantly a post-Second World War phenomenon. The Court shifted its focus from narrow economic issues to questions of civil-rights and liberties, the protection of criminal defendants and the application for the provisions of almost all of the Bill of Rights to the states through the process of incorporating them in the Due Process clause of the 14th Amendment. This is not solely a constitutional trend. Judicial decisions have also broadly extended tort law, especially products liability as precedents holding gun and tobacco manufacturers liable for their products illustrate.

It is hardly surprising that the judicial activism debate flourishes; Americans feel no constraints in second-guessing judges. Numerous provisions of the Bill of Rights and the 14th Amendment, which form the very foundations for constitutional protections of civil liberties, were intentionally written in open-ended language. Terms such as “due process” and “equal protection” invite varying interpretations and subjective, value-laden readings from both judges and lay persons which underpin both activism and criticism of it.