The Legacy of Judicial Activism

By Stephen Pomper, Washington Monthly. Posted December 16, 2004.

Now, with the ailing William Rehnquist entering his 18th year as chief justice of the U.S. Supreme Court, liberals find themselves facing an unexpected truth about his legacy: It hasn't been that bad.

To the surprise of the legal left, the Rehnquist Court has refused to overturn Roe v. Wade and has broken new ground in protecting the civil rights of homosexuals. It has endorsed some forms of affirmative action. In last Spring's highly charged enemy detainee cases, it refused to write the executive branch a blank check for wartime detention powers. And even in its hypertechnical (and therefore less controversial) federalism cases, which concern the powers of Congress over the states, the Court has feasted less aggressively on Congress' legislative authority than might have been anticipated, contenting itself to snack on bits and pieces. In retrospect, liberal anxieties about how far this Court would go in implementing the Reagan revolution are looking somewhat misplaced if not, on occasion, hysterical.

So how did the Court arrive at such a sane and centrist position? In The Most Activist Supreme Court in History (University of Chicago Press, 2004), political scientist Thomas Keck gives credit to a practice that has long been the rhetorical whipping boy of the legal right: judicial activism. And, in particular, he credits the bipartisan activism practiced by the Court's powerful swing justice, Sandra Day O'Connor. To find Keck's analysis useful, you don't have to accept his conclusion that the Rehnquist Court is in fact the most activist Court in history. You do, however, have to accept some of his premises about what makes for an “activist” Court. Keck sees Supreme Court activism as having three separate prongs, linked by a fundamental disdain for Congress. The first is a tendency to invalidate statutes in impressive numbers, disregarding Justice Oliver Wendell Holmes's admonition that nonelected judges should give great deference to democratically elected legislatures. The second is the extent to which the Court asserts its supremacy by declaring that it alone may interpret the Constitution — even where the Constitution appears to give other branches of government the right to share this authority. And the third indicator, argues Keck, is the willingness to wander into so-called “political thickets” — messy cases with no clear right answer and big-time political implications.

Does Keck fully make the case that the Rehnquist Court (which invalidated a record 33 federal statutes on constitutional grounds in eight years, made soaring pronouncements about the supremacy of its constitutional views over Congress,' and wandered into the mother of all political thickets in Bush v. Gore) is more activist than the Warren Court (which invalidated far more state and local laws, handed down the catalytic Brown v. Board of Education decision, and steered somewhat irresponsibly toward a constitutional guarantee of economic equality)? Not really, but it doesn't matter. Even if you think the Warren Court should win top activist billing for the breadth and impact of its decisions, the Rehnquist Court's voluminous, if tempered, record gives Keck more than enough material to chew on.

It also raises the question: How can conservatives possibly square the Rehnquist Court's activist legacy with their own anti-activist rhetoric? Well, it turns out there's a trick: There are actually two different kinds of activism — conservative and liberal — and conservatives don't count decisions within their own tradition as, well, activism. In teasing this out, Keck explains that the two activist traditions have very different objectives. Conservative activists want to achieve limited government — particularly at the federal level — and tend to get there by arguing that Congress is interfering with economic or states' rights. By contrast, liberal activists want to protect the core freedoms that allow vulnerable minorities to participate in the political process. They give extra scrutiny to laws that affect those minorities, and invalidate those that they judge to put politically tinged freedoms at risk. The heyday of conservative activism was the early New Deal era, when the Court struck down one after another of FDR's legislative initiatives; Roosevelt put an end to that by threatening to pack the Court. The heyday of liberal activism was the Warren Court era of the '50s and '60s and the early Burger Court period of the '70s, which has left a legacy (including Roe v. Wade) that rankles conservatives to this day.

Stephen Pomper is a contributing editor of The Washington Monthly.

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