David's Hammer: The Case for an Activist Judiciary

By Clint Bolick | Go to book overview

2. Judicial Activism: Everybody's Favorite Bogeyman

Our nation's capital always has been a partisan place, but never more so than today. Republicans and Democrats stridently vie for power apparently as little more than an end in itself. Special-interest groups across the political spectrum engage in vicious battle with the sole operational principle that the ends justify the means. Partisan and ideological rancor makes accomplishing anything difficult— which is often a good thing, considering the sorts of things that Washington, D.C., produces. Nonetheless, the infighting makes for a particularly nasty environment.

And yet, many Republicans and Democrats, conservatives and liberals, no matter how far apart they are on other issues, converge on one premise: that judicial activism is rampant and threatens to wreck our country. Although attacks on judicial activism date back nearly 200 years, what is unprecedented is the shared sense of out- rage across the ideological spectrum. “What makes the current wave of judge-bashing unusual," remarks George Washington University law professor Jeffrey Rosen, “is that virulently personal attacks now come from both sides of the political spectrum.”1

It really is quite remarkable. In the recent U.S. Supreme Court confirmation battles, judicial activism was the major rallying cry on both sides of the partisan and ideological divides. Indeed, both sides even have written books about the plague of judicial activism and how bad it is for America. You'd think that liberal and conservative critics of judicial activism were about to bury the hatchet and become the best of friends, united against the common foe.

But the consensus dissipates rapidly once the common demon is identified. For conservatives, the recent confirmation battles were about ending liberal judicial activism. And for liberals, they were about preventing a conservative judicial revolution.

Both sides' arguments contain a kernel of truth. As conservatives argue, courts have indeed strayed beyond legitimate boundaries of

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David's Hammer: The Case for an Activist Judiciary
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Foreword ix
  • 1. Mrs. Swedenburg Goes to Court 1
  • 2. Judicial Activism: Everybody's Favorite Bogeyman 19
  • 3. the Origins and Importance of Judicial Review 35
  • 4. Judicial Activism: The Bad and the Good 49
  • 5. the Rehnquist Court: A Judicial Counterrevolution Fizzles out 69
  • 6. Model Justice 87
  • 7. Economic Liberty 97
  • 8. Private Property Rights 113
  • 9. School Choice 127
  • 10. State Constitutions: The Beckoning Frontier 139
  • 11. an Activist Judiciary, for All the Right Reasons 157
  • Notes 165
  • Index 179
  • About the Author 189
  • Cato Institute 192
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