Donald Trump is not the first U.S. president to criticize "activist judges" for allegedly obstructing his agenda — but he may be the most vocal.
Since the start of his second term, President Trump and his allies have repeatedly criticized judges who rule against his administration, often accusing them of political bias and judicial overreach. "We cannot allow a handful of communist radical-left judges to obstruct the enforcement of our laws and assume the duties that belong solely to the president of the United States," Trump told supporters late last month.
The Constitution enshrines the bedrock principle of an independent judiciary and the separation of powers, but that hasn't stopped presidents and members of Congress from criticizing the federal courts — including the U.S. Supreme Court — when they disagree with their decisions.
"The complete independence of the courts of justice is peculiarly essential in a limited Constitution," Alexander Hamilton wrote in the Federalist Papers in 1788.
The term judicial activism was coined in 1947 by historian Arthur M. Schlesinger Jr. in an article for Fortune magazine. He used it to describe certain Supreme Court justices during the Roosevelt and Truman administrations — particularly in the context of New Deal reforms — who, in his view, saw the judiciary as a tool for advancing social justice. In contrast, Schlesinger praised other justices as "champions of self-restraint."
However, criticism of activist judges predates the term and has come from both ends of the political spectrum. Democratic and Republican presidents alike have accused the courts of exceeding their constitutional role. "Judicial activism largely exists in the eye of the beholder," says Barry Friedman, a law professor at New York University and author on the subject. "One person's activism is another's sound decision-making."
What is judicial activism?
Cornell University's Legal Information Institute defines judicial activism as "the practice of judges making rulings based on their policy views rather than their honest interpretation of the current law." It stands in contrast to judicial restraint, which emphasizes deference to precedent and reluctance to reinterpret established law.
"Judging is supposed to be a relatively conservative — with a small 'c' — endeavor," Friedman says. "If a judge is overturning precedent too easily or stretching legal reasoning too far, you might call that activism."
In politics, though, the label is often used more loosely. "It's become a way to say, 'We don't like what the court just did,' " says Keith Whittington, a Yale Law School professor. "It was originally a term used by left-leaning critics in the early 20th century, but by mid-century it had been embraced by conservatives. Now it's a bipartisan complaint."
How has the term been used?
Friedman says there are distinct phases in how Americans reacted to Supreme Court decisions: In the early years of the court, it wasn't uncommon to ignore its rulings. A case in point, he says, is Georgia v. Tassel, dating from 1830. In it, a Cherokee man was convicted of murder, but the conviction was later appealed to the Supreme Court. However, the state of Georgia refused to recognize the high court's authority to examine the case and executed Tassel anyway.
"Then came the era of judicial supremacy, where court decisions were accepted as final," Friedman says.
The infamous and far-reaching 1857 case, Dred Scott v. Sandford, in which the Supreme Court ruled that African Americans were not citizens and that Congress had no authority to ban slavery, is a prime example from this era, he says.
"When Dred Scott was handed down, we moved into this period of supremacy," Friedman says. "And so, people reading the decision who disagreed violently with it, engaged in a number of dodges to try to explain why, even though it looked like it said one thing, it really didn't."
By the early 20th century, President Franklin D. Roosevelt grew increasingly frustrated with the Supreme Court after it struck down several key New Deal programs, mostly in 5-4 decisions. In response, he proposed expanding the number of justices — a move that became known as "court packing." In a 1937 fireside chat defending the proposal, Roosevelt accused the high court of "acting not as a judicial body, but as a policy-making body."
"We have reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself," Roosevelt said.
Even prior to the court-packing plan, a series of cases challenging Roosevelt's plan to take the U.S. off the gold standard and prohibit payment of debts brought the country to the verge of a constitutional crisis. The administration, Yale's Whittington says, "really took the view that we cannot tolerate any dissent."
"There were rumors in Washington at the time that judges would be arrested ... that the court would just be disbanded," he says.
During the Nixon era, "the term pretty consistently meant judges who were invalidating government policies," according to Richard Fallon Jr., a professor at Harvard Law School.
Richard Nixon's 1968 campaign positioned him as an opponent of the Supreme Court then headed by Chief Justice Earl Warren. The Warren Court is often viewed by historians as the most liberal.
President Nixon accused the Warren Court of coddling criminals, says Laura Kalman, a research professor at the University of California, Santa Barbara. "His rhetoric painted the court as too lenient on criminals and obstructive to law enforcement."
As an alternative to what he deemed judicial activism, Nixon advocated "strict constructionism" — a conservative legal philosophy of interpreting the law as closely as possible to the original intent of the Constitution — Kalman says.
By President Ronald Reagan's time, however, "judicial activism" came to refer to judges who failed to strike down policies that conservatives saw as "inconsistent with original constitutional meaning," Fallon says.
On a number of occasions during his presidency, Reagan complained about activist judges. In a 1987 address on proposed criminal justice reform, for example, he decried the "liberal phenomenon" that produced "judges who thought it was their right to make the law, not just interpret it."
And now Trump's criticism appears to be the most vociferous, marking "a highly politicized phase, where judicial rulings are frequently contested and used as political fodder," Friedman says.
How have the courts responded?
With a strong Democratic majority in Congress, Roosevelt's court-packing threat was real. But a confrontation with the courts was averted by an ideological shift. Justice Owen J. Roberts made what came to be known as "the switch in time that saved nine," a reference to his sudden change in voting patterns that meant Roosevelt wouldn't need to pursue his court-packing proposal in order to protect his policy programs.
"There's extensive scholarly debate as to what exactly explains the switch in time ... but certainly the timing of the conversion suggests that the court-packing plan played a role," Whittington says.
In 2018, Chief Justice John Roberts felt compelled to defend judicial independence against a first-term Trump's criticism of a decision by an "Obama judge" that went against the administration. "We do not have Obama judges or Trump judges, Bush judges or Clinton judges," Roberts said in a statement. "What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for."
More recently, Roberts has responded to Trump's criticism of U.S. District Judge James Boasberg, who blocked the deportation of Venezuelan migrants. In a March post on social media, the president said that Boasberg was an unelected "troublemaker and agitator" who should be impeached.
Trump's remarks drew another rare rebuke from the chief justice: "For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision," Roberts said. "The normal appellate review process exists for that purpose."
Whittington says the chief justice is "doing something that the justices traditionally were pretty reluctant to do."
"But, you know, I think he clearly also thinks that in the current environment ... [the court] needs to be defended," he says.
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