I. JUDICIAL ACTIVISM
II. THE NATURE AND SOURCE OF
III. THE LIBERAL ACTIVISM OF THE
IV. CONSERVATIVE ACTIVISM BY THE
A. Bush v. Gore
B. Racial Preferences
D. Regulatory Takings
V. THE PREDOMINANTLY LIBERAL
ACTIVISM OF THE OCTOBER 2000 TERM
A. Search and Seizure
B. Freedom of Speech
D. State Action
E. Statutory Interpretation
VI. IN SUM: STILL A PREDOMINANTLY
LIBERAL ACTIVIST COURT
It is an article of faith in legal academia and the liberal media that the "Rehnquist Court," the present Supreme Court, is extremely conservative. "[C]onservative judicial activism is the order of the day," NYU law professor Larry Kramer bitterly complains in the New York Times: "The Warren Court was retiring compared to the present one." (1) University of Chicago law professor Cass Sunstein concurs in another New York Times article, writing that "[w]e are now in the midst of a remarkable period of right-wing judicial activism. The Supreme Court has moderates but no liberals." (2) These assertions tell us more about legal academia and the media than they do about the Court. The Court's liberal critics are correct that it continues to be activist, but its activism, contrary to their assertions, continues to be predominantly activism of the left. If Professor Sunstein does not find Justices Stevens, Souter, Ginsburg, and Breyer to be liberals, it is difficult to see what more they would have to do to meet his definition.
I. JUDICIAL ACTIVISM
The phrase "judicial activism" is subject to different usages, some confusing and inconsistent. Most generally, it means judges making rather than following the law. In the constitutional context, where it is most important because the decisions are hardest to change, it can most usefully be defined as judges disallowing as unconstitutional policy choices made in the ordinary political process that the Constitution does not clearly disallow--"clearly" because in a democracy the judgment of elected representatives should prevail in cases of doubt. Rulings upholding constitutionality demonstrate not activism, but restraint, a willingness to permit the policy choices made in the political process to prevail. Another reason such rulings--at least apart from the question of the scope of the federal government's enumerated powers--are rarely activist is that they are almost always legally correct because our short and simple Constitution wisely precludes very few policy choices, almost none of which American legislators would otherwise make.
Nor should it be considered activist--it is anti-activist--for a court to overrule a prior activist decision, returning the issue to the political process. Rulings of unconstitutionality give the prevailing party a positive victory, the adoption of a policy preference it failed to obtain in the ordinary political process, while the losing party has its political victory taken away. Rulings upholding constitutionality simply leave things as they were. For practical purposes, the extent and nature of a court's constitutional judicial activism is best determined by considering only its rulings denying, not its rulings upholding, constitutionality and comparing liberal and conservative victories.
II. THE NATURE AND SOURCE OF CONSTITUTIONAL LAW
Our constitutional law of the past half-century, beginning with the Warren Court, has had two defining characteristics. First, it has had very little to do with the Constitution: the bulk of rulings of unconstitutionality involved state, not federal, law and nearly all of those purported to turn on a single constitutional provision, the second sentence of the Fourteenth Amendment, and ultimately on no more than the words "due process" or "equal protection." (3) Scholarly debates on methods of constitutional interpretation are essentially irrelevant and at best misleading, because ordinarily there is little for a court to interpret. …