Glossary
Judicial activism
A critical label for judging that appears to be driven by the judge's policy preferences rather than the law.
Also called: legislating from the bench, activist judges
Judicial activism is a term, usually used as criticism, for decisions in which judges are seen as going beyond the text of a law or the Constitution to reach results they prefer. The phrase is commonly traced to a 1947 article by historian Arthur Schlesinger Jr. It is often paired with the complaint of "legislating from the bench."
There is no single agreed definition. The label has been applied to striking down laws passed by elected legislatures, to overruling precedent, to reading new rights into the Constitution, and to ignoring text or history. Conservatives used it widely against the Warren Court and decisions such as Roe v. Wade, arguing that living constitutionalism let judges impose policy. Liberals have applied the same term to conservative rulings that struck down campaign finance limits, parts of the Voting Rights Act and gun laws.
Because nearly every side accuses the other of activism when it loses, scholars often treat the term as more rhetorical than analytical. The underlying debate is about the proper scope of judicial review and the merits of judicial restraint.
Last reviewed November 8, 2026