In today’s political climate, the term “judicial activist” is code for a judge doing whatever the judge wants to do in spite of the law in a controversial case. That’s an incorrect understanding. It’s also a denigration of a strand of legal theory known as judicial activism in which courts apply established legal principles to circumstances unforeseen at the time of a law or constitution’s enactment. In one way, attacking judges for being activists is akin to assailing us for doing our job. In another, it’s demagoguery. Thoughtless use of the term threatens judicial independence and with it, the rule of law. 

In the current election cycle, candidates routinely promise not to appoint or elevate judicial activists. Huzzahs can be heard for this new mantra. That’s a dangerous development. 

The Bill of Rights protects individuals against the power of the state and the will of a majority. In a constitutional democracy, that’s why the judiciary is referred to as the anti-majoritarian branch of government. 

If a judge substitutes a personal preference for the law, that’s not judicial activism. It’s arrogance and unfaithfulness to duty. In contrast, judicial activism has a rich pedigree in mainstream legal theory. Consider the Supreme Court’s 1954 opinion in Brown v. Board of Education, where the court held that educating African-American children in “separate but equal” schools violated the equal protection clause of the constitution. In 1789, when the constitution was adopted, the education of African-American children wasn’t in view, but nearly two centuries later, the protection of the constitution was accorded this group. Brown’s result is applauded, in part, because the court applied the principle of equal protection in a circumstance not envisioned at the time of the constitution’s adoption. That’s a classic example of judicial activism.

Contrast Brown with Dred Scott, holding, in 1857, that African Americans were not citizens because they weren’t when the constitution was adopted. Dred Scott is an example of a legal theory called strict constructionism. Think of the outcome of Brown if the reasoning of Dred Scott had been applied to the educational opportunities of African-American children in 1954. Another example of judicial activism is the constitution’s protection against unreasonable searches and seizures, now routinely applied in cases of electronic eavesdropping. These are examples of judicial activism — the application of principles espoused by the drafters to circumstances they could not have envisioned. 

Sometimes, it’s difficult to know whether a judge, in rendering a decision, is applying accepted principles to a new situation or simply acting on personal preference. Consider, for example, Justice Scalia’s opinion that the District of Columbia’s ban on handguns violated the Second Amendment’s guarantee of the right to bear arms. Did Justice Scalia correctly hold that the amendment’s statement concerning the need for a well- regulated militia was not intended to be a limitation on the individual right to bear arms or did he, as an avid sportsman and hunter, simply reach a conclusion consistent with his personal policy preferences? A similar argument rages about Justice Scalia’s decision in the Citizen’s United case where he equated speech with money in holding that restricting corporate contributions to political campaigns unconstitutionally limited free speech. Similar debates swirl about decisions concerning same-sex marriage and recently, our state Supreme Court’s opinion on the death penalty. 

To the extent judges in these cases adapted stated principles to new circumstances, they can be applauded for their judicial activism. If, however, it can fairly be claimed they ignored the law and created rights based on their personal preferences, they should be criticized, not for activism, but for their unfaithfulness to duty. 

Why is this not merely a matter of semantics? If the accusation of judicial activism has become the new shorthand for assailing an unpopular decision, judicial independence is at risk and, so too, the protection of individual rights in our rule of law society. Criticize judges and our decisions if they reflect unfaithfulness to the law but not because you don’t like a particular outcome or you think criticism may resonate with the electorate. To the extent that we cherish our individual rights against the power of the majority, judges who protect those rights should be celebrated and not sacrificed on the altar of populism. 

Judge Thomas A. Bishop is a retired member of the Connecticut Appellate Court, where he continues to hear appeals on a part-time basis. He is also a former adjunct professor of law at the University of Connecticut School where he taught a seminar on judicial independence.