Deferred sentence: why the Rehnquist Court has done so little damage, so far.

• Author: Pomper, Stephen
• Position: The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism - Book Review

The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism By Thomas M. Keck University of Chicago Press, $24.00

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 (including my own--see "The Gipper's Constitution," December 1999) 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 (a title that could earn the Coulter Citation for Rhetorical Subtlety), 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...