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Clint Bolick, co-founder of the Institute for Justice, sits down with Russ Roberts to argue for a reframing of the term "judicial activism." Rather than accepting the pejorative use of the phrase, Bolick contends that courts should actively defend individual liberty—especially economic and property rights—against laws that serve special interests disguised as majoritarian will. The conversation draws on historical grounding in Federalist 78 and traces how courts abandoned their proper role after the New Deal, deferring excessively to legislatures even when they enable factions to exploit ordinary citizens. The two work through concrete cases and regulatory regimes to test this framework.
The discussion ranges widely across occupational licensing, school choice, interstate commerce, and property rights. Bolick walks through striking examples: cosmetology laws that effectively outlawed African hair braiding by requiring 1,600 hours of training in chemical hair treatment, DC's ban on street-corner shoeshine stands (a Jim Crow relic), and state wine-shipping cartels that blocked direct sales to consumers. He also treats school choice mechanisms—particularly scholarship tax credit programs that funnel private donations to disadvantaged students—as a model of liberty-protecting policy design. The core tension runs throughout: legislatures are vulnerable to faction capture, especially at the local level where special interests operate with little opposition, leaving courts as the only forum where individuals can meet organized power on level ground. Bolick distinguishes this vision of judicial activism from what he calls "judicial lawlessness"—courts overreaching into executive or legislative territory—and argues the real judicial failure is not boldness but timidity.
Bolick argues that 'judicial activism' properly understood means an aggressive judiciary defending individual liberty against majoritarian and special-interest tyranny, and that the real failure of modern courts is excessive deference that has eroded economic and property rights since the New Deal.
- Hamilton's Federalist 78 envisioned the judiciary as a negative check voiding unconstitutional laws, which is the legitimate active role courts should play
- Since the New Deal, courts abandoned protection of economic liberty and property rights, deferring to special-interest-driven legislation
- Cases like the wine direct-shipping case, Kelo, and occupational licensing show courts either correctly protecting or wrongly abandoning individual liberty against factions
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Occupational licensing exemplifies the 'bootleggers and Baptists' / 'unholy coalition' dynamic: a high-minded advocate for regulation provides moral cover for a self-interested advocate, so superficially sensible competency requirements end up restricting entry and keeping wages high with no productive benefit.
“such a nice example of what known Friedman calls an unholy coalition and what brucey and allah clemson is called the bootleggers and Baptists”
Cosmetology licensing laws required ~1,600 hours of training centered on chemical hair treatment and white hairstyling, while African hair braiding (which uses no chemicals and is a thousands-year-old art form) wasn't even taught—effectively outlawing African hair stylists; litigation in California struck the laws down, and California replaced the 1,600-hour rule with a 16-hour sanitation requirement.
“in most states that required 1600 hours of of training in a school that would teach people about everything from coloring hair to straightening hair... except African hair crating which wasn't even taught on the curriculum”
Scholarship tax credit programs (in Arizona, Pennsylvania, Florida, Rhode Island, Iowa) give a dollar-for-dollar tax credit to taxpayers who donate to scholarship funds for economically disadvantaged children—a no-strings-attached form of school choice that avoids direct government funding.
“they give a tax credit a dollar-for-dollar tax credit to tax payers who are willing to donate money to scholarship funds for other people's kids specifically economically disadvantaged families”
It is easier for a special interest (faction) to manipulate the levers of power at the local level than at the national level, so courts must be especially careful to protect constitutional liberties locally, since individuals are often powerless in the political process and only meet powerful interests on a level playing field in court.
“it's easier for a special interest or in those days called a faction to manipulate the levers of power at the local level than at the national level”
Occupational licensing exemplifies the 'bootleggers and Baptists' coalition: a high-minded advocate for regulation provides cover for a self-interested advocate, so seemingly benevolent training requirements actually serve the profession's desire to restrict entry and keep wages high, with no productive benefit.
“what brucey and allah clemson is called the bootleggers and Baptists you have on one side a seemingly high-minded advocate for a regulation and then you have a self-interested advocate and the high-minded advocate gives cover to the self-interested advocate”
The right to earn an honest living—economic liberty free from arbitrary government interference—receives less judicial protection than the right to receive a welfare check; you can tie up the government over welfare benefits, but if government obliterates your profession for protectionist reasons you have virtually no recourse.
“the right to earn an honest living receives less judicial protection than the right to receive a welfare check”
Romanticizing majority rule is a road to tyranny; the framers, especially Madison, were cynical about government power and recognized that special interests (factions) can manipulate levers of power more easily at the local level than the national level, making local government a special danger to liberty.
“it's easier for a special interest or in those days called a faction to manipulate the levers of power at the local level than at the national level”
Occupational licensing regimes, often controlled by the profession itself (the legal cartel being the most pernicious), are designed not to promote public welfare but to restrict entry and keep wages high; the proper judicial role is to sift laws genuinely promoting welfare from those serving special interests, as the court did in the cosmetology case.
“many of which are control old by the profession itself and none more pernicious than my own profession the legal cartel”
Teachers unions are uniquely politically powerful because teachers are present in roughly equal numbers in every legislative and congressional district (since schools follow population), making them simultaneously dispersed and concentrated—a combination that lets them influence both local and national politics; their power grew as private-sector unions waned.
“teachers are present in relatively equal numbers in every legislative district and every congressional district in the country because wherever you have population you have schools”
The District of Columbia's ban on street-corner shoeshine stands originated as a turn-of-the-century Jim Crow law aimed at a popular entrepreneurial device used by recently emancipated blacks; the 1990 Federal District Court struck it down as having no rational basis, allowing entrepreneur Ego Brown to return to work.
“the District of Columbia in its abundant wisdom decided to forbid street corner shoeshine stands at the turn of the previous century when when recently emancipated blacks were trying to find ways to support themselves”
Washington DC's ban on street-corner shoeshine stands, originally a turn-of-the-century Jim Crow measure aimed at recently emancipated black entrepreneurs, was struck down by a federal court in 1990 as having no rational basis, allowing entrepreneur Ego Brown—who hired homeless people and trained them—to return to work.
“the Federal District Court struck down that law saying that it had no rational basis whatsoever and ego Brown was able to go back to work”
The Supreme Court (5-4) held that the 21st Amendment gives states broad power to regulate alcohol for health, safety, and minors, but does not empower economic protectionism—so states must regulate with one set of rules and cannot favor in-state distributors over out-of-state wineries.
“the twenty-first amendment did not empower the states to engage in economic protectionism and so these laws were struck down”
The Constitution was largely created out of a passionate desire to form a national economic union and eradicate state power to maintain protectionist trade barriers; the wine-shipping cartel case was exactly the kind of protectionist state legislation that animated the Constitution.
“we probably wouldn't have had a constitution if it were not for the very passionate desire to create a national economic union and to eradicate the power of the states to create and maintain protectionist trade barriers”
The wine decision has ramifications far beyond wine: as the internet displaces middlemen distributors, those distributors in fields like automobile sales and contact lenses are turning to state legislatures for protectionist legislation, so the ruling was a major blow for internet commerce and consumer freedom.
“they're turning to their state legislatures for protectionist legislation in areas as far ranging as as automobile sales and contact lenses so this was a tremendous blow for for Internet commerce”
State legislation forbidding direct interstate shipment of wine, pushed by a cartel of distributors, was exactly the protectionist trade barrier the Constitution's Commerce Clause was designed to prevent; the 21st Amendment lets states regulate alcohol for health/safety but does not authorize economic protectionism, so such laws were rightly struck down 5-4.
“a cartel of distributors was pushing for state legislation that would forbid the direct shipment of wine across state lines to consumers and this was exactly the sort of problem this protectionist state legislation that animated the Constitution”
Critics call economic-liberty litigation 'judicial activism' arguing legislatures should regulate, but because legislatures are prone to special-interest influence, the proper role of the court is to separate laws genuinely designed for public welfare from those serving special interests—a sifting it can perform objectively without undue influence, as in the cosmetology case.
“the role of the court is to separate the wheat from the chaff to separate laws that are genuinely designed to promote public welfare from those that are really designed to serve special interests”
Cosmetology licensing required ~1600 hours of training centered on chemical-based white hairstyling while not teaching African hair braiding at all (which uses no chemicals), effectively outlawing African hair stylists and forcing them into the black market; litigation led California to replace the 1600-hour requirement with a 16-hour sanitation requirement—the appropriate form of regulation.
“they would have to take tests that demonstrated proficiency in white hair styling and no proficiency whatsoever in African hair styling so what happened was that African hair stylists were essentially outlaws”
Regulatory takings occur when government doesn't physically take property but limits property rights so severely that it has effectively taken a significant part of their value—e.g., governments creating open space by passing laws forbidding development rather than buying the land, imposing the cost on a single owner rather than the whole community.
“the government doesn't actually physically take control of your property but it limits your property rights so severely that it essentially has taken a significant part of the value of your property rights”
Judicial activism, properly defined, means a court willing to stand up against majoritarian tyranny and uphold the rights of the individual; this is distinct from judicial legislation or usurping executive power, which is 'judicial lawlessness' and a bad thing.
“what I mean by judicial activism is a court that is willing to stand up against majoritarian tyranny and uphold the rights of the individual and what I don't mean by judicial activism is courts engaging in judicial legislation or taking on the powers of the executive branch I refer to that as judicial lawlessness”
Teachers unions are uniquely powerful because teachers are present in roughly equal numbers in every legislative and congressional district (since population means schools everywhere), making them both dispersed and concentrated—a combination that lets them influence politics at both the local and national levels.
“by definition teachers are present in relatively equal numbers in every legislative district and every congressional district in the country because wherever you have population you have schools”
Marbury v. Madison (1803), the first assertion of the power to strike down acts of the executive or legislature, was fully consistent with the framers' understanding as expressed in Federalist 78; the historical revisionism came from Jefferson and Madison, who as presidents reversed their earlier support for strong judicial review because it now checked their own excesses.
“Marbury vs. Madison which was the first time that the court asserted the power to strike down an act of the executive or the legislature was totally consistent with the framers understanding”
Judicial activism, properly defined, is a court willing to stand up against majoritarian tyranny and uphold the rights of the individual; this is distinct from judicial legislation or courts assuming executive powers, which Bolick calls 'judicial lawlessness' and condemns.
“what I mean by judicial activism is a court that is willing to stand up against majoritarian tyranny and uphold the rights of the individual and what I don't mean by judicial activism is courts engaging in judicial legislation or taking on the powers of the executive branch I refer to that as judicial lawlessness”
Alexander Hamilton in Federalist No. 78 set forth the proper role of the judiciary as the ultimate negative check against tyranny—exercising power only by voiding unconstitutional laws, never by exercising executive or legislative powers, which is largely the role the court plays today.
“the best argument for what the role of the judiciary ought to be was voiced by Alexander Hamilton in the Federalist Papers number 78 and he really set forth a very thorough explication of what role the court would play”
Many professions are heavily regulated through occupational licensing controlled by the profession itself, dramatically inflating prices and restricting paraprofessionals; the legal cartel is among the most pernicious examples, inflating prices for legal services.
“none more pernicious than my own profession the legal cartel which has the effect of dramatically inflating prices for legal services at the same time as it limits paraprofessionals from from doing things that they ought to be doing”
The erosion of property rights began with the New Deal court, which upheld slum-clearance takings as 'public use' even when property passed from one private owner to another, starting a slippery slope that by a 1984 case (Hawaii) allowed the largest expropriation of property in U.S. history, upheld unanimously with Justice O'Connor in the majority.
“the New Deal court began to eviscerate these protections when efforts were made to clear so-called slums so that public housing could be constructed”
Marbury v. Madison (1803), the first assertion of the power to strike down acts of the executive or legislature, was totally consistent with the framers' understanding as expressed in Federalist 78; the historical revisionism came from Jefferson and Madison, whose view of the judiciary changed once it became a check on their own presidential excesses—an example of how incentives shape positions.
“their view of the judiciary changed because suddenly it was a check on their excesses as president and so the historical revisionism was actually on the part of Jefferson and Madison”
Before the New Deal, courts invoking the 14th Amendment aggressively struck down laws interfering with freedom of contract or creating arbitrary impediments to economic liberty; after the New Deal the court abandoned that searching review and adopted an 'anything-goes' approach.
“prior to the New Deal the courts invoking the 14th amendment which was intended to protect economic Liberty were very aggressive in striking down laws that interfere with freedom of contract”
Although courts have struck down more laws in recent years, this does not show increased activism, because the number of laws and regulations enacted has grown exponentially while judicial invalidations have not kept pace—meaning the courts are actually too deferential, not too aggressive.
“the number of laws struck down pales in comparison to the increase in the number of laws and regulations that have been enacted”
The right to earn an honest living receives less judicial protection than the right to receive a welfare check; before the New Deal, courts invoking the 14th Amendment aggressively struck down arbitrary impediments to economic liberty, but afterward the Court abandoned searching review and adopted an 'anything-goes' approach.
“the right to earn an honest living receives less judicial protection than the right to receive a welfare check”
It would be an act of judicial activism to strike down the Kelo law, and that is exactly what justices' oath to uphold the Constitution requires; if people prefer 'public benefit' over 'public use' they must amend the Constitution—which the founders deliberately made difficult—rather than have courts rewrite it.
“if the words public use appear in the Constitution it is it ought to be unlawful for the court to ignore them”
Teachers unions are the most powerful and reactionary special interest group in the U.S. and effectively control the Democratic Party: about a third of Democratic convention delegates are schoolteachers or union members, making it impossible for a school-choice advocate to be nominated for president, as shown by Clinton renouncing school choice and Lieberman softening his support upon joining the ticket.
“it is literally impossible for an advocate for school choice to be nominated for president by the Democratic Party”
Caroline Hoxby's research found that, contrary to teachers' union claims, in every place where public schools faced meaningful competition their performance actually improved—vindicating Milton Friedman's view that the rules of competition are not suspended at the schoolhouse door.
“in every single place where public schools have been faced with meaningful competition the improve the public school performance has actually improved”
It is literally impossible for a school-choice advocate to be nominated for president by the Democratic Party because teachers unions control the party at the national level—about a third of the delegates to the Democratic convention are schoolteachers or union members—as shown by Joe Lieberman and Bill Clinton both renouncing prior school-choice support upon seeking national office.
“it is literally impossible for an advocate for school choice to be nominated for president by the Democratic Party”
In Kelo v. New London the Supreme Court (5-4) allowed government to seize property and transfer it to private developers for economic development, effectively writing the words 'public use' out of the Constitution and substituting the broader 'public benefit'—which Bolick calls judicial lawlessness rather than activism.
“the courts allowed that use of eminent domain basically basically writing out of the Constitution the important words public use and substituting their prefer preferred words public benefit”
The rule of law in America means knowing the legal environment you'll be in, so that buying a property or asset comes with a usable plan for the future; allowing that to be changed on a legislature's whim—as in eminent domain abuse—is unhealthy and constitutes 'reverse Robin Hood' transfers from one private owner to another.
“the transfer of private property through government government action from one private owner to another what we call reverse Robin Hood”
In sports leagues there is a tension where owners share an interest in the league being highly competitive but also each want to win every year; in the NFL, extreme revenue sharing (versus less extreme in MLB) means mediocre owners can earn a decent living, creating a temptation to avoid competition, field a mediocre team, and enjoy revenues from harder-trying owners.
“the extreme revenue sharing mentioned by skip in contrast with Major League Baseball where revenue sharing exists but it's less extreme that means that mediocre owners in the NFL can earn a pretty decent living”
An active judiciary in defense of individual liberty is vital to the preservation of a free society, serving as the ultimate negative check against tyranny in the legislative, executive, and bureaucratic branches.
“an active judiciary and defense of individual liberty is vital to the preservation of a free society”
The Kelo decision, allowing New London to seize private property and transfer it to developers for economic 'public benefit,' represents judicial lawlessness because it effectively wrote the words 'public use' out of the Constitution and substituted the courts' preferred 'public benefit'; justices' oath obligates them to enforce the Constitution's actual words.
“writing out of the Constitution the important words public use and substituting their prefer preferred words public benefit that to me is again an exercise and judicial lawlessness”
Regulatory takings occur when government, instead of buying property to achieve a goal like open space, simply passes a law severely limiting property rights so it gets the benefit without paying—shifting the cost from the community onto a single property owner; new initiatives like Oregon's allow citizens to challenge such uncompensated value reductions.
“the government doesn't actually physically take control of your property but it limits your property rights so severely that it essentially has taken a significant part of the value of your property rights”
An active judiciary in defense of individual liberty is vital to the preservation of a free society, serving as the ultimate check against tyranny by the executive, legislative, and bureaucratic branches.
“an active judiciary and defense of individual liberty is vital to the preservation of a free society”
Since the 2002 Supreme Court decision upholding school choice, the Alliance for School Choice has passed 18 new or expanded school-choice programs, adding tens of thousands of low-income children able to use education funds at private schools; scholarship tax credits (dollar-for-dollar credits for donations to scholarship funds) offer a no-strings, less-politicized alternative to public vouchers.
“we have passed 18 new or expanded school choice programs around the country adding tens of thousands of kids who no longer have to go to the government school”
Although the number of decisions striking down laws has grown (especially in the Rehnquist court), it pales in comparison to the exponential growth in laws and regulations enacted, so the courts are actually too deferential rather than too activist.
“the number of laws struck down pales in comparison to the increase in the number of laws and regulations that have been enacted”
The erosion of property and economic liberty protections began with the New Deal Court, which, in upholding slum clearance for public housing, started down a slippery slope from literal 'public use' to 'compelling public benefit,' culminating in a 1984 unanimous decision upholding mass expropriation of property in Hawaii.
“the New Deal court began to eviscerate these protections when efforts were made to clear so-called slums”
The current monopoly system of public education is a dinosaar destined to be displaced because technology (homeschooling, distance learning, computer-based learning) makes individualized, student-tailored education possible, so a system designed today would never be the bricks-and-mortar, one-size-fits-all command-and-control model we have.
“the current monopoly system of public education is a dinosaur and it is really threatened to to go the same way and I see that so optimistically mainly because of Technology”
Americans have a nostalgic attachment to public schools, so unions effectively market opposition to choice as 'bad for public schools'—an alarm bell people viscerally respond to—but conditions in inner cities (four million kids in schools that have failed minimal state standards for at least six consecutive years) make the situation intolerable.
“anytime someone stands up and says this is bad for public schools it's an alarm bell that people viscerally respond to so the unions have been very very effective at marketing this”
The current monopoly public-education system is a dinosaur destined to fade, primarily because of technology: a system built today would not be a one-size-fits-all bricks-and-mortar command-and-control model but an individualized one, and the rise of homeschooling, distance learning, and computer-based learning makes the move toward individualized education inexorable.
“the current monopoly system of public education is a dinosaur and it is really threatened to to go the same way and I see that so optimistically mainly because of Technology”
The New York argument that banning out-of-state wine sales protected against minors ordering wine online was self-refuting, because there were no equivalent constraints on in-state wineries' mail distribution—revealing that the real motivation was protecting the in-state delivery system.
“there were absolutely no constraints on New York wineries whatsoever in terms of their distribution so it just really blew a hole in their argument and we presented quite a bit of evidence showing that the real motivation was to protect the in-state delivery system”
The proper role of the judiciary, as set forth by Hamilton in Federalist 78, is a purely negative check: it voids unconstitutional laws but never exercises executive or legislative powers—a role courts have departed from today.
“the court would exercise its power by voiding unconstitutional laws but it would never actually exercise executive or legislative powers which courts often do today”
Once school-choice vouchers are politicized as public funds, there is a danger that legislators have an incentive to increase voucher size and reduce competition; Roberts suggests an idealist alternative of private vouchers funded by private money rather than public vouchers.
“once we politicize the the voucher movement we have an incentive for legislators to increase the size of the voucher and just continue to reduce the side of competition”
Robert Bork represents the most extreme position on the right, having publicly called for an end to judicial review of the constitutionality of laws, which would leave the judiciary only to resolve disputes and adjudicate criminal proceedings—and would unleash tyranny in the legislative, executive, and bureaucratic branches.
“Robert Bork is probably the most extreme example he is publicly called for an end to judicial review of the constitutionality of laws”
Caroline Hoxby's research found that, contrary to teachers' union claims, in every place where public schools faced meaningful competition their performance actually improved—vindicating Milton Friedman's view that the rules of competition are not suspended at the schoolhouse door.
“in every single place where public schools have been faced with meaningful competition the improve the public school performance has actually improved”
The NFL's extreme revenue sharing makes it realistically possible for any of 32 franchises to win the Super Bowl, whereas Major League Baseball's weaker revenue sharing makes it hard to win the World Series outside about eight big-market franchises; revenue sharing also lets mediocre NFL owners earn a decent living, creating a strange incentive to free-ride on harder-trying owners.
“the extreme revenue sharing mentioned by skip in contrast with Major League Baseball where revenue sharing exists but it's less extreme that means that mediocre owners in the NFL can earn a pretty decent living”
Robert Bork's position—calling for an end to judicial review of constitutionality so that majorities acting through democratic or bureaucratic processes prevail—would, if adopted, unleash tyranny in the legislative, executive, and bureaucratic branches.
“Robert Bork is probably the most extreme example he is publicly called for an end to judicial review of the constitutionality of laws”
High-profile constitutional cases serve as powerful teaching vehicles because people often don't realize rights they think they have—like the right to earn an honest living—are not actually protected; dramatizing the effects on individuals like the small winery owner or Mrs. Kelo shows Americans how much their rights have eroded.
“constitutional cases is that they can be tremendous teaching vehicles a lot of times people don't realize that they're right that they think they have like the right to earn an honest living for example really are not protected”
Politicizing the voucher movement creates an incentive for legislators to increase voucher size and reduce competition, suggesting it may be better to pursue private (philanthropic) vouchers funded privately rather than public vouchers tied to government schools.
“once we politicize the the voucher movement we have an incentive for legislators to increase the size of the voucher and just continue to reduce the side of competition”
Fogel and Engerman wrote Time on the Cross specifically to advance the proposition that slavery was financially viable and to debunk the claim that it was economically moribund; the important open questions are whether slavery would have died a natural death without the Civil War and how long that would have taken.
“can certainly write that Fogle and Angermann found slavery to be financially viable the important questions are these which slavery have died a natural death in the South without the civil without the Civil War”
A sports league is in some sense a single firm because you cannot start your own baseball team without other teams to play against, so owners face a tension between wanting a competitive league and each wanting to dominate.
“in some sense the league is a single firm after all you can't just start your own baseball team you need other teams to play against”
A sports league is in some sense a single firm because you cannot start your own team without other teams to play; owners share an interest in a highly competitive league yet each wants to win every year, so they may tolerate a mediocre owner as long as he does not drag down the league's overall product.
“in some sense the league is a single firm after all you can't just start your own baseball team you need other teams to play against”
The rule of law in America includes the opportunity to know what legal environment you will be in, so that when you purchase property you can rely on a plan for the future; allowing that to be changed on a legislature's whim is unhealthy.
“the rule of law which basically is among other things in this in America the opportunity to know what legal environment you're going to be in”
The framers were cynical about government power, and romanticizing majority rule is the road to tyranny—the founders had no romance about democracy.
“romanticizing majority rule in particular is the road to tyranny”
After the wine decision, the distributor industry tried to shut off direct shipping entirely, but a substantial number of states (Arizona, Virginia, Texas, New York) instead eased their discriminatory rules, so the vast majority of Americans can now freely order wine from wineries anywhere in the U.S.
“in a substantial number of states that had had discriminatory rules in fact the states have moved to ease them”
Since the 2002 Supreme Court decision upholding school choice, the Alliance for School Choice has passed 18 new or expanded school choice programs adding tens of thousands of kids who can use their education funds at private schools instead of government schools.
“we have passed 18 new or expanded school choice programs around the country adding tens of thousands of kids who no longer have to go to the government school”
It's important, when the left and the right get together on something, to hold on to your wallet.
“anytime you see the left and the right getting together on something it's important to hold on to your wallet”