Judicial Activism or Restraint? The Role of the Supreme Court in Expanding (or Limiting) Women's Constitutional Rights

Abstract

This article examines the U.S. Supreme Court’s oscillating jurisprudence on women’s constitutional rights through the lens of judicial activism versus judicial restraint, tracing a trajectory from bold doctrinal expansion in the 1970s to resolute originalist retrenchment in the post-Dobbs era. Employing doctrinal legal analysis of landmark decisions spanning Reed v. Reed (1971) to Dobbs v. Jackson Women’s Health Organization (2022) and its 2023-2025 progeny, the study classifies outcomes according to whether the Court created or expanded rights, elevated scrutiny, invalidated legislation, or deferred to historical tradition and legislative authority. Findings reveal a clear pendulum movement: an activist phase (1971-early 1990s) that established intermediate scrutiny for sex-based classifications and substantive due process protection for reproductive autonomy; a mixed period (2000–2015) marked by federalism-driven restraint in violence-against-women remedies yet occasional reassertion of undue-burden review; and a decisive post-2016 shift toward originalism and history-and-tradition tests that eliminated federal constitutional abortion protection and applied deferential rational-basis review to related gender claims, including minors’ access to gender-affirming care. The analysis demonstrates that the Roberts Court’s embrace of restraint is not only overturned half a century of precedent but effectively devolved fundamental aspects of bodily integrity and equal citizenship to state majorities, exposing the fragility of unenumerated rights when interpretive philosophy changes. By anchoring liberty and equality claims to 1868 meanings that excluded women from civic participation, contemporary originalism systematically disadvantages gender-equality arguments and risks further erosion of contraceptive, intimate-association, and affirmative-action protections. Comparative examination of more activist constitutional courts in Canada, India, and South Africa highlights the regressive potential of rigid historical methodologies. The article concludes that, absent legislative or amendatory intervention, the Court’s current restraint threatens to entrench systemic subordination, transforming the judiciary from guardian against majoritarian failure into an instrument that constitutionalizes historical gender hierarchies under the banner of democratic restoration and textual fidelity.

Keywords: Judicial Activism, Judicial Restraint, Originalism, Women’s Constitutional Rights, Reproductive Autonomy, Equal Protection, Substantive Due Process, Dobbs V. Jackson Women’s Health Organization.