The Least Activist Supreme Court in History? the Roberts Court and the Exercise of Judicial Review

By Whittington, Keith E. | Notre Dame Law Review, May 2014 | Go to article overview

The Least Activist Supreme Court in History? the Roberts Court and the Exercise of Judicial Review


Whittington, Keith E., Notre Dame Law Review


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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Least Activist Supreme Court in History? the Roberts Court and the Exercise of Judicial Review
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.