The least activist Supreme Court in history? The Roberts Court and the exercise of judicial review.

Author:Whittington, Keith E.
Position:The Evolution of Theory: Discerning the Catalysts of Constitutional Change
 
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ABSTRACT

Not too many years ago, scholars could reasonably speak of the U.S. Supreme Court as being among the most activist in American history. Both empirical and normative scholarship was driven by the sense of a Court that was aggressive in the assertion of its own supremacy and active in the exercise of the power of judicial review. The Court under Chief Justice John Roberts cannot be viewed in the same way. The Roberts Court has issued its share of controversial constitutional decisions, but a rarely observed but important feature of the Roberts Court is its unusual restraint in the exercise of judicial review. By some measures, in fact, the Roberts Court can thus far be called the least activist Supreme Court in history. This Article demonstrates that the Roberts Court is deserving of that title and investigates some features of the exercise of judicial review of the current Court compared to its recent predecessors. The Court has become less likely to strike down federal laws, but importantly it has become far less likely to invalidate state laws. Although the willingness of modern conservative jurists to strike down statutes is notable, the declining ability of the liberals on the Court to form majorities willing to strike down state laws has been particularly important to the creation of a restrained Court. The return of judicial activism on the Supreme Court is likely to depend on the appointment of more liberal Justices to the Court who could press the constitutional views that are now most often expressed in dissent.

INTRODUCTION

Not too many years ago, both activists and scholars were increasingly alarmed by the apparent activism of the U.S. Supreme Court. Such critiques of the Court have gradually faded, but have certainly not disappeared. Justice Ruth Bader Ginsburg only recently insisted that she needed to stay on the Court in order to oppose what is "one of the most activist courts in history." (1) The Justices are still subjected to denunciations of particular decisions, but broad-gauged attacks on the activism of the Court have seemingly receded.

The shifting critiques of the Court reflect an underlying reality. In recent years the Court has been less active in exercising the power of judicial review than it has at any point in its modern history. But even the earlier critiques of an apparently activist Court obscured underlying trends in judicial review.

The Roberts Court is notably conservative, but that simple label provides only a partial description of the recent Court. Chief Justice John Roberts is himself part of a conservative majority that has often been able to shape the recent development of constitutional law. But the Court remains divided between more conservative and more liberal Justices, and those coalitions offer competing visions of what the constitutional rules are and how they ought to be applied. Over time, the liberal wing of the Court has often been able to form majorities to strike down legislation, usually over the objections of the conservative wing. Ironically, it is Ginsburg herself who is among the most activist Justices on the current Court and represents the most likely source of increased judicial invalidations. (2)

It has not been frequently observed that the Roberts Court has been remarkably reluctant to exercise the power of judicial review. The Court in recent years has struck down federal laws in fewer cases than has its predecessors. More importantly, the Court has struck down state laws in far fewer cases than has been routine for the past century. This Court could plausibly be described as the least activist Court in history, and this recent pattern should also cause us to reevaluate the claims of activism during the late Rehnquist Court.

This Article proceeds in stages. Part I reviews claims that the contemporary Court has been the most activist in history. Part II develops the case for thinking that the Roberts Court has instead been the least activist. Part III examines the transformation of the Court through a series of snapshots of constitutional decisions from the late Burger Court through the Roberts Court. Part IV examines the constitutional decision making of the Roberts Court in more detail.

  1. THE MOST ACTIVIST COURT IN HISTORY?

    During the late Rehnquist Court, cries of "judicial activism" were common. (3) Much, though not all, of this attention was focused on the Court's invalidation of federal statutes. There was a notable uptick in how often the Rehnquist Court struck down federal laws. Moreover, those laws were struck down by slim 5 to 4 majorities, often with the same set of conservative Justices leading the way. (4) Those cases also tended to reflect a remarkably coherent set of constitutional concerns. The Court repeatedly returned to the question of how far Congress was restrained by structural features of the Constitution, most notably federalism, and often found that Congress was limited in ways that had not been emphasized by the Court since the first half of the twentieth century. Unsurprisingly, this line of decisions attracted attention from scholars and pundits alike. (5)

    Charges of judicial activism from the political right have been familiar for quite some time, and the Rehnquist Court heard its share of such complaints. In the aftermath of the 1992 abortion rights decision of Planned Parenthood of Southeastern Pennsylvania v. Casey, (6) authored by a trio of Reagan-Bush appointees, the conservative journal First Things sparked a firestorm with its "End of Democracy" symposium (7) pondering whether a United States government dominated by an

    unrestrained Court had lost legitimacy. (8) Christopher Wolfe was among a group of conservative scholars who continued through the 1990s and into the 2000s to denounce judicial activism as a threat to republican government. (9) For many on the right, "the Court's continuing injection of its power into so-called culture war issues" was the primary concern and seemed unabated by the appointment of more conservative Justices. (10) Conservative politicians continue to rail against judicial activists, as evidenced by everything from bills introduced in Congress (11) to party platforms (12) to congressional hearings. (13)

    Perhaps more notable has been the resurgence of critiques of judicial activism from the left. Such criticisms of the courts were once familiar, roiling political and intellectual debate in the early twentieth century, (14) but had been muted by the revolutions in constitutional law since the New Deal. (15) Over the past couple of decades, the left has rivaled the right in its perception of growing judicial activism. Symposia and panel discussions have been organized to analyze "conservative judicial activism." (16) Trade books were written denouncing right-wing judicial activism. (17) Liberal democratic politicians have begun to worry about judicial activism. (18) Academic concerns with a growing "judicial supremacy" during the Rehnquist Court dovetailed with an emerging literature calling for a "popular constitutionalism" that would take the Constitution away from the Court (19)--all of which amounts to a "new activist Court." (20)

    The framing of judicial activism has changed somewhat with the shift in ideological valence. It is perhaps telling that President Obama framed judicial activism as opposing the "will of Congress," (21) while conservatives have tended to focus more on the judicial nullification of state laws. Democratic Representative Elijah Cummings characterized as a "staggering assertion of judicial activism" the possibility of the Justices "dismiss[ing] the legitimacy of our votes in Congress" by striking down federal statutory provisions. (22) Senator Patrick Leahy has denounced conservative Justices for obstructing the congressional will, contending that "[i]t is the very definition of judicial activism when a court imposes a rule of decision rejected by its own precedent and rejected by Congress." (23) Early on, Linda Greenhouse took to the pages of the New York Times to warn of a "radical" Court that was upsetting "[l]ong-held assumptions about the authority of the national government." (24)

    One useful perspective on the Rehnquist era that both captured this gist and offered an explanation for the activist turn is provided in Thomas Keck's The Most Activist Supreme Court in History, (25) Keck's wide-ranging study is ultimately concerned with tracing the abandonment of a tradition of judicial self-restraint most closely associated with Justice Felix Frankfurter. No subsequent Justice has embraced the posture of across-the-board deference to legislatures in the exercise of constitutional review that Frankfurter advocated. The Warren Court instead adopted a vision of "rights-based constitutionalism" that marked out a robust role for the judiciary in monitoring and checking the other branches of government. (26) The Warren Court's decisions continue to shape conceptions of the judicial role, even if the particular substance of constitutional law has been in flux.

    Keck observes that the invalidation of statutes by the U.S. Supreme Court has varied over time. (27) The brief period of Frankfurter's greatest influence, from the introduction of the Court-packing plan to his departure from the bench in 1962, also marked a period of unusual restraint for the modern Court. (28) Subsequently, the Court became more active, striking down statutes at a higher rate, either on behalf of a liberal rights agenda or a conservative rights agenda. Importantly, Keck contends that once the "conservative majority started to come into its own," the late Rehnquist Court embarked on a period of "extraordinary activism." (29) Moreover, he explains this shift by focusing on the willingness of the pivotal Justices on the Court, Sandra Day O'Connor and Anthony Kennedy, to endorse a program of both liberal and conservative activism. (30) The willingness of those Justices to...

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