“Whatever the institution of judicial review was originally thought to be, there is little doubt about what it has become: a powerful tool in the hands of a Court that has assigned to itself the job of policing our democracy’s deepest structures.”

Linda Greenhouse, “Because We Are Final” Judicial Review Two Hundred Years after Marbury

The US Supreme Court now lies at the vortex of a changing tidal wave. The pendulum of public opinion is swinging from championing the achievement of civil rights victories to disillusionment with judicial activism, fostering sentiments that the Court is too powerful and is not representative of the people’s views. Once championed as a beacon of progress and justice, the Court is now viewed with increasing disenchantment and skepticism.

Since the seminal 1803 U.S. Supreme Court case, Marbury v. Madison, it has been established in American jurisprudence that the power of the Supreme Court is ultimately derived from the principle of ‘judicial review.’ Marbury asserted the Supreme Court’s authority to assess the constitutionality of laws and executive actions, establishing the precedent for the judiciary to nullify unconstitutional statutes. Over time, judicial review as a concept has evolved, emerging as a cornerstone of judicial activism. This refers to a type of activism where judges interpret laws and the Constitution broadly to promote specific social or political agendas, using the legal system to effect change.

Throughout American history, the judiciary has been crucial in advancing civil rights and liberties through judicial review. Landmark cases such as Obergefell v. Hodges, which declared same-sex marriage as a right under the Fourteenth Amendment, and Roe v. Wade, which legalized abortion, exemplify how courts have used judicial review to overturn laws deemed unconstitutional. These decisions have strongly influenced public policy and had a profound impact on society. In recent years, judicial activism has extended to a wide range of issues, including LGBTQIA+ rights, immigration policy and environmental protection. Courts have intervened to protect marginalized communities, safeguard individual liberties and hold government officials accountable for overreach. Progressive activist judges, often drawing on expansive interpretations of constitutional principles, have played a pivotal role in shaping the modern legal landscape and advancing progressive agendas.

The Court’s activism during the civil rights era, epitomized by decisions like Brown v. Board of Education, was seen by many Americans as a necessary response to state-sanctioned discrimination and injustice. In the Jim Crow South, states had a terrible track record with upholding the rights of Black Americans, and it was widely accepted that Brown happened because Arkansas was following the mandate to integrate public schools. Thus, progressives saw judicial activism as a good thing, correcting the injustices of society. However, today, the public’s perception of the Court’s composition and judicial priorities has shifted considerably.  Progressive reverence once held for the Court has given way to skepticism and even hostility, reflecting broader disillusionment with American institutions of power. 

Critics of judicial activism argue that activist judges are overstepping their constitutional authority and attempting to legislate from the bench, usurping the role of elected representatives and undermining democratic governance. The judicial restraint philosophy emphasizes the courts’ limited role in interpreting and applying the law. Instead of actively shaping public policy or intervening in controversial issues, judges should adhere strictly to the text of the Constitution and defer to the democratic process. Belief in judicial restraint is rooted in respect for the separation of powers. It asserts that unelected judges should refrain from making policy decisions or imposing their personal beliefs on society. 

According to a recent Gallup poll in September 2023, approval rates of the Supreme Court are at a record low. Only 41% of the sample said they approved of the Court’s performance, with a majority, 58%, saying they disapproved. While many factors contribute to this growing distrust, from the controversial appointment of Brett Kavanagh to Clarence Thomas’ recent ethics scandals, the crux of the issue appears to be the Court’s decisions to overturn major precedent cases. Following the striking down of Roe v. Wade in 2022, a growing number of Americans feel that Chief Justice Roberts’ court is irreparably flawed. With the court dominated by a 6-3 hard-right majority, critics argue that these conservative justices often behave like political activists, ignoring precedent. Critics believe the justices to be imposing their personal preferences on issues such as affirmative action, gun regulations and President Joe Biden’s student loan forgiveness plan. The main criticisms include the claim that the Court consciously makes value-based decisions, acting more like players than umpires and allowing their personal beliefs to shape public policy in consequential ways. These shifts have forced Americans to reckon with the fundamental question: In our modern democratic system, how should we view and define the role of the Supreme Court?