In moving from the abstract to the concrete, applying the princi- ples outlined in the preceding chapter is useful for examining specific instances in which the courts have strayed beyond appropriate judi- cial boundaries—as well as instances in which horrible deprivations of liberty would have occurred were it not for judicial intervention. The discussion here of decisions ranging roughly from the 1890s to the 1970s is far from exhaustive but is merely illustrative and the- matic. Many more specific instances of both good and bad judicial activism are discussed in subsequent chapters. Ultimately I hope the reader will join me in concluding that the question of the proper role of the judiciary in a free society is tremendously important and that application of a consistent set of principles is necessary both to constrain the judiciary where appropriate and to unleash it where freedom demands.
Compiling a “greatest hits” of the worst American judicial opin- ions is difficult. Like reality TV, so much bad material exists from which to choose.1 But two of the cases are easy to choose, for they obliterated two of the three protections of the then recently enacted Fourteenth Amendment. They illustrate well the point that the worst judicial activism occurs not when the judiciary acts too expansively, but when it fails to act at all. The human consequences of those two instances of judicial activism were grievous and remain with us even today.
In The Slaughter-House Cases2 (which I discuss in greater detail in chapter 7), the U.S. Supreme Court by a 5-4 vote eviscerated the ”privileges or immunities” clause of the Fourteenth Amendment, the first of the three provisions of that amendment and the only one that, on its face, protects substantive liberties. The 1873 ruling upheld