The end of the SCOTUS term made sweeping changes in areas of equal protection and abortion, with affirmative action pending a ruling when the Court begins its next term in October. Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade, sending the authority to regulate abortion back to the states. It ruled on Carson v. Makin under the First Amendment’s religion and equal protection clauses. And in West Virginia v. Environmental Protection Agency, the Court ruled to limit the power of regulatory agencies.
Additionally, during the latest SCOTUS term, Justice Clarence Thomas’ wife, Virginia “Ginni” Thomas, received much media attention for her controversial involvement in the Jan. 6 “Stop the Steal” rally, and support of former President Donald Trump’s claims the election was stolen. Ginni Thomas went so far as to call on Arizona lawmakers to choose independent electors who would call the state for Trump in the 2020 election. Clarence Thomas’ refusal to recuse himself on decisions involving Jan. 6 has been met with widespread criticism, opening up questions about judicial activism. Penn Carey Law’s Kermit Roosevelt wrote a book in 2008 about judicial activism, “The Myth of Judicial Activism: Making Sense of Supreme Court Decisions.” The definition, in fact, is much more nuanced and specific to the justice system and the three branches of government, and not, in fact, an extension of personal activism.
By definition, judicial activism describes how a justice approaches judicial review, where judicial activists abandon their responsibility to interpret the Constitution and instead decide cases to advance their preferred policies.
Brown v Board of Ed was considered judicial activism at the time, which ruled that racial segregation of children in public schools was unconstitutional. However, Dred Scott v. Sandford was also considered judicial activism, for the ruling that upheld slavery in the United States, and denied the legality of Black citizenship in America.
In a Q&A with Penn Today, Roosevelt offers a brief history of the phrase “activist judges,” how the term has been used throughout the 20th century, and what to make of the current SCOTUS bench.