Defining the term
Damon Root described judicial activism as a phrase typically used as an insult, wielded to describe decisions one dislikes or attributes to the other side. He noted that conservatives for the last 30 years have complained that liberals are the activists because they invented a right to privacy and rights to abortion not grounded in the Constitution, while liberals accuse conservatives of the same crime—reading the Second Amendment too broadly and treating Heller as an example of conservative judicial activism. Root said the term is used very loosely and not specifically. He contrasted this with judicial deference and restraint, the view that courts should be hands-off of democratically enacted laws and not interfere with the elected branches, naming Robert Bork and John Roberts as examples. Root recalled that Roberts, in casting the deciding vote to uphold the healthcare law in 2012, called it an act of judicial restraint and said it was not the Court’s job to protect the people from the consequences of their political choices. Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014)
Clark Neily drew a distinction between judicial activity and judicial activism. He said that when the government violates people’s rights—engaging in censorship, preventing worship, imposing arbitrary travel bans—we want and need a judiciary that will step in to actively enforce constitutional rights and push back against the other branches. To say we do not want an activist judiciary is not to say we do not want an active judiciary. Activism, properly defined, is when a judge substitutes his or her own personal policy preferences for clearly established law. Neily called qualified immunity one of the best and most glaring examples of judicial activism so defined, because the judiciary took Section 1983—a statute providing for broad liability on the part of government officials, including police officers, for the deprivation of any right—and substituted its own judgment about ideal policy, rewriting the statute in effect to produce a narrower scope of liability. An Unprecedented Opportunity to Revisit Unqualified Immunity (2020)
Josh Blackman said judicial activism does not really mean anything; it is sort of just an attack on a decision you do not like. He said there are some cases where courts should be active and some where they should not, and the challenge is deciding which is which. He observed that some judges are active in certain cases and others in other cases—perhaps a more liberal judge would be eager to rule in an abortion case against the state, while other judges might be eager to rule in a gun case against the state. What matters, Blackman said, is judicial philosophy: how do you decide which sorts of rights are worth protecting and which are not. Eight-Dimensional Chess (2020)
Judicial restraint and its critics
Bob Zadek framed the debate over judicial restraint as central to Supreme Court nominations, noting that the phrase judicial activism versus judicial restraint was a big deal in the Bork decision and somewhat of a big deal in the Roberts decision, though Roberts handled it smoothly politically. Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014)
Blackman described Robert Bork as perhaps the most eloquent modern advocate of judicial restraint, arguing that in wide fields of life the elected branch should be able to do whatever they want, and that Bork was quite candid about that. Blackman said the more modern approach is not so much about deferring reflexively but trying to decide whether the government’s stated rationale is actually the reason why they are acting. He gave the example of the city of Philadelphia telling a Catholic adoption agency it had to let gay parents adopt children; the city said it needed to enforce its non-discrimination policy, but there was some evidence the city was actually hostile to Catholicism. Blackman said this sort of peeling behind the surface to look at the government’s true motivations is a thread in all modern Supreme Court jurisprudence, and that both parties are willing to flex their muscles. Eight-Dimensional Chess (2020)
Activism and specific doctrines
Neily said that qualified immunity is a judge-made principle, not a statute, and that there is a straight, bold line between it and civil unrest in the country. He explained that the judiciary took Section 1983 and rewrote it to produce a different policy with a narrower scope of liability for rights-violating government actors. An Unprecedented Opportunity to Revisit Unqualified Immunity (2020)
On absolute immunity, Neily said the surest way in America to become a judge is to first be a prosecutor, and that prosecutors and judges have absolute immunity from civil liability. He said the rationale for prosecutors especially is preposterously sophomoric: the Supreme Court’s position is that there are other ways to hold prosecutors accountable (which Neily called false), and that nobody would want to be a prosecutor if you allowed people to sue them for misconduct, so civil liability must be eliminated altogether. Neily said this would include suborning perjury, knowingly presenting false perjury in court to obtain a conviction known to be false as an act of personal vengeance, and that even if you could prove all of those things and spent 20 years in prison before being exonerated, you cannot sue that prosecutor. He called it bonkers and said it has happened before. Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022)
Neily said absolute immunity was invented out of whole cloth by the Supreme Court in a 1973 case called Imbler v. Pachtman, purporting to interpret Section 1983, which says all state actors shall be liable to the person injured for the deprivation of any right. He said the Supreme Court somehow saw in that language an exception for prosecutors who commit misconduct on the job, calling it a pure example of judicial activism—making up policy they thought would have been better than what Congress came up with. Neily said Justice Stevens wrote a dissent that destroys the majority’s attempt to conjure up this kind of history, and that it is a nakedly policy-oriented decision. Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022)
Bob Zadek characterized the Court’s action as taking a statute, putting a pen to it, adding two words the legislature who enacted the statute in 1871 did not intend and did not add, and rewriting a statute—an unelected branch of government drafting or revising legislation without authority. He said the legislature, not the judiciary, writes legislation because the legislature is answerable to the public. An Unprecedented Opportunity to Revisit Unqualified Immunity (2020)
The Warren Court and the rise of judicial power
Bob Zadek asked how the Supreme Court became so important, noting that in the founding era it had nothing to do and was not a job people especially wanted, and that most of its work is dreary, wonky, hyper-technical, and affects few people other than the litigants. Eight-Dimensional Chess (2020)
Blackman said he did not think he had a good reason, but that in large part the Supreme Court had stood by idly for decades as segregation and Jim Crow spread, and at some point the Warren Court—the court under Chief Justice Earl Warren—said enough is enough and needed to assert itself. He said power is an intoxicating drug; once you get a little taste of it, you want more. He described a very short glide path from desegregating schools to prohibiting bans on abortion. Once you take yourself out of the mentality of deference, Blackman said, why shouldn’t the court substitute their wisdom for those of the other branches? These decisions, he said, did not make much pretense about the text and original meaning of the Constitution; they were based on living in a contemporary society and not being able to have these things anymore. Once you accept that frame, all bets are off, and you can achieve just about anything you want with five votes. Eight-Dimensional Chess (2020)
Bob Zadek said that once the Supreme Court started to become more muscular in the 1950s, it started to affect more people more frequently, and the stakes became higher. He asked whether there is a direct relationship between the power assumed by the Supreme Court and the stakes going up, and whether the role today was envisioned by the founders. Eight-Dimensional Chess (2020)
Critiques from the left
David Kaplan said his own politics are decidedly left of center, and that as a legislator he would support extremely liberal, unrestrictive abortion laws, but he does not think those rights ought to be declared by judges and does not think it is a constitutional matter. He said not all intelligent, wise policy derives from the Constitution, and the Court ought not be in the business of determining the—. Demystifying the Supreme Court (2019)
Across episodes
The excerpts show the same question argued across multiple episodes, with the treatment shifting from definitional debate to concrete application. In the 2014 episode, Damon Root treated judicial activism as a loose insult used by both sides and contrasted it with judicial deference, naming Bork and Roberts. In the 2020 qualified immunity episode, Clark Neily gave activism a specific definition—substituting personal policy preferences for clearly established law—and applied it to Section 1983 and qualified immunity. In the 2020 Eight-Dimensional Chess episode, Josh Blackman said the term means little and redirected the debate to judicial philosophy. In the 2022 Dobbs episode, Neily extended the analysis to absolute immunity and Imbler v. Pachtman. David Kaplan’s 2019 critique of Roe v. Wade from the left adds a distinct perspective. The later episodes move from abstract definition toward naming specific doctrines and cases as examples of activism.
What the sources do not cover
The excerpts do not state the state in which Philadelphia is located, the name of the healthcare law beyond “Obamacare,” the amendment on which Heller turned, or the full holding of Roe v. Wade. They do not provide the founding date of Section 1983 beyond Bob Zadek’s reference to 1871, nor the outcome of Imbler v. Pachtman beyond the immunity it established. The excerpts break off mid-sentence in several places, including Kaplan’s discussion of what the Court ought not be in the business of determining. No excerpt states the name of the bill or statute at issue in the 2012 healthcare case beyond the reference to the Affordable Care Act as “Obamacare.”