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July 10, 2015 | Back to All Articles


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 “I know it when I see it” – Supreme Court Justice Potter Stewart on defining “obscenity” in his decision on a pornography case


It’s ironic that a statement by a Supreme Court justice that critics say justified judicial activism might be the best explanation for the definition of judicial activism. 


Stewart, who was generally considered a conservative on a liberal court, wrote in 1964 that a French movie called “Les Amants” (“The Lovers”) was not “hard-core pornography” and the freedom of speech clause in the First Amendment of the U.S. Constitution protected obscene movies unless they included hard-core pornography. Stewart’s opinion was part of a 6-3 ruling in Jacobellis vs. Ohio that overturned a fine against a movie theatre manager who showed “Les Amants.”


The U.S. Constitution, of course, says nothing about movies because movies didn’t exist when it became law of the land in 1789. Consequently, critics of the Jacobellis ruling say that communities should have the right to pass laws banning or regulating expressions of ideas that aren’t explicitly protected by the Constitution, and a judicial decision that denies communities this right is “judicial activism.”


Black’s Law Dictionary defines judicial activism as when judges allow their personal views to guide their judicial decisions. Justice Stewart’s decision in Jacobellis was guided by his personal view of what constituted obscenity in a movie context.



The fact that Stewart’s view was personal doesn’t necessarily mean that the court’s decision didn’t have legal merit or was an example of judicial activism. Legal scholars are divided into many camps, including strict constructionists and loose constructionists. Strict constructionists say all Supreme Court decisions should be based on what is explicitly in the Constitution, while loose constructionists say the Constitution is a “living document” that should be interpreted to take into account the changes that have occurred in the United States since 1789.


In the 1950s and 1960s, the Warren Court ― which was named after Chief Justice Earl Warren ― often made decisions that sided with loose constructionists. Conservatives derided these decisions as examples of judicial activism that were based on personal views. Liberals disagreed, arguing that parts of the Constitution, including the First Amendment and the Fourteenth Amendment’s equal protection clause, should be broadly interpreted to protect the rights of minorities, criminal suspects, people who opposed governmental policies and others.



Warren Court decisions that were cited as examples of judicial activism include:

  • Brown vs. Board of Education, which made separate public schools for blacks and whites illegal
  • Griswold vs. Connecticut, which struck down a law prohibiting the sale of contraceptives, on grounds that the law violated people’s right to privacy
  • Miranda vs. Arizona, which compelled police officers to inform apprehended suspects that they had the right to remain silent and the right to an attorney
  • Engel vs. Vitale, which outlawed government-directed prayer in public schools


Ironically, during the last 25 years, liberals have accused conservative judges who have identified themselves as strict constructionists of being judicial activists whose decisions were based on their personal and political views. The two Supreme Court cases that seem to have caused the biggest uproar were the 5-4 decisions along conservative/liberal lines that made George W. Bush the president of the United States (Bush vs. Gore) and outlawed limitations on political spending by corporations (Citizens United v. Federal Election Commission).


In the Bush case, Justice Antonin Scalia ordered the State of Florida to stop counting votes before the Supreme Court heard the case because the result could “threaten irreparable harm to petitioner Bush.” In the final decision, both the conservative and liberal blocs reversed their long-standing views on states’ rights and the equal protection clause.



George W. Bush’s lead attorney in the Bush vs. Gore case was longtime conservative lawyer Ted Olson. Years later, though, Olson sided with liberals when he became the co-counsel for gay couples who were seeking to overturn California’s ban against gay marriage. The couples won.


In a television interview, Chris Wallace of Fox News read Olson’s criticisms of judicial activism when he was a “leading conservative lawyer” and asked Olson whether a California judge who had ruled in favor of the gay couples wasn’t demonstrating judicial activism.


“Most people use the term ‘judicial activism’ to explain decisions that they don’t like,” Olson told Wallace.

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