Judicial Activism in AP US Government

Brown and Citizens United: two activist rulings from opposite sides

In 1954, Brown v. Board of Education overturned Plessy v. Ferguson (1896), the ruling that had allowed "separate but equal" segregation. A unanimous Court threw out almost 60 years of precedent and held that segregated public schools violated the Equal Protection Clause of the Fourteenth Amendment. That's activism by the course definition, since the Court reversed earlier case precedent and invalidated state laws.

In 2010, Citizens United v. FEC struck down limits on independent political spending by corporations and unions, overruling Austin v. Michigan Chamber of Commerce (1990). A 5-4 conservative majority wrote it, and critics called it activist for the same reasons people once called Brown activist.

Most people today praise Brown, and Citizens United still splits opinion. Both are required cases in the course, and both fit the definition. Keep that pair in mind whenever you're tempted to treat "activist" as a synonym for "liberal" or as a synonym for "wrong."

The precedent test that separates activism from restraint

Judicial activism belongs to Unit 2: Interactions Among Branches of Government, in Topic 2.11 (Checks on the Judicial Branch). That topic is about the ongoing argument over how much power unelected judges should have once they can use judicial review. Activism and restraint are the two competing answers to that argument.

The dividing line is precedent. Under stare decisis (Topic 2.9), courts follow earlier rulings when a new case has similar facts. A restraint-minded judge treats that rule as close to binding. An activist approach treats judicial review as permission to reverse precedent or to invalidate acts of Congress or the president.

Topic 2.9 also explains when activism tends to happen. Presidential appointments shift the Court's ideological makeup, and a newly shifted majority is more willing to set new precedents or overturn old ones. Activist rulings are where those appointment-driven shifts show up in actual law.

One trap is assuming a ruling only counts as activist if it overturns an old case. Striking down a law from the elected branches also counts, even when no precedent gets reversed.

How Congress, presidents, and amendments answer an activist Court

Topic 2.11 pairs the activism debate with the checks other branches can use when they think the Court has gone too far:

• Constitutional amendments. In Pollock v. Farmers' Loan & Trust (1895), the Court struck down a federal income tax. The Sixteenth Amendment (1913) reversed that result by allowing a federal income tax.
• Appointments. After the Court struck down New Deal programs in the mid-1930s, Franklin Roosevelt proposed in 1937 to add up to six justices. Congress rejected his court-packing plan, but it shows a president treating Court membership as a way to reshape rulings.
• New legislation. Congress can pass laws that change the effects of earlier rulings, or limit the Court's appellate jurisdiction over certain kinds of cases.
• Delayed implementation. Presidents and states can slow down how a ruling gets carried out. After Brown, many Southern districts resisted desegregation for years.

These checks are why the debate over activism is political as well as legal. Calling a ruling "activist" is often the first step toward arguing for one of these responses.

Labeling a dissent in multiple choice and arguing Court power in free response

A dissent that says "overturning this 30-year precedent is judicial activism, and courts should follow precedent without compelling reasons" is arguing for judicial restraint, even though it uses the word "activism." In multiple choice, expect a scenario or a short text excerpt like that, often from a dissenting opinion, and a question asking which view of judicial review it expresses. Picking "activism" because the word appears is the common wrong answer. Label the writer by what they want the Court to do, regardless of which words they use.

In the SCOTUS Comparison question, you may compare a non-required case with Brown or Citizens United. A strong answer states each holding and explains whether the Court broke from precedent or struck down a law, which lets you discuss activism with specific evidence.

In Concept Application, a scenario might describe the Court striking down a law. You'd explain how Congress or the states could respond using the Topic 2.11 checks. In the Argument Essay, a prompt about whether the judiciary has too much power fits Federalist No. 78, a required document. In it, Alexander Hamilton calls the judiciary the "least dangerous" branch and defends judicial review. Supporters of an active Court can cite it, and critics can rebut by pointing to the checks that exist because judges are unelected.