Judicial Activism

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12 March 2016

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It is perhaps unsurprising that the liberal court led by Chief Justice Earl Warren from 1953 to 1969 invalidated federal, state and local laws at almost twice the rate of the Roberts court. But the more conservative court that followed, led by Chief Justice Warren E. Burger from 1969 to 1986, was even more activist, striking down laws in almost 9 percent of its cases, compared with just over 7 percent in the Warren court and just 4 percent in the Roberts court. The court led by Chief Justice William H. Rehnquist from 1986 to 2005 was also more activist than the current one, at 6.4 percent.

In a new book, “Terms of Engagement,” Clark M. Neily III of the Institute for Justice, a libertarian group, calculated that the Supreme Court struck down just 103 of the 15,817 laws enacted by Congress in the half-century ending in 2002. “It is implausible,” he wrote, “to suppose the federal government hits the constitutional strike zone 99.5 percent of the time.” Mr. Neily urged the Supreme Court to be more active but rejected the phrase “judicial activism.” After the Supreme Court argument in the case in the spring of 2012, with things looking grim for the fate of his law, Mr. Obama tried to shift the terms of the discussion back to activism. “I’d just remind conservative commentators,” he said, “that for years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law.”

Three months after Mr. Obama’s remarks, Chief Justice Roberts broke with his usual conservative allies and voted with the court’s four liberals to uphold the law. In a joint dissent, the four conservatives said the majority was wrong to portray its ruling as “judicial modesty” when “it amounts instead to a vast judicial overreaching.” In a recent essay, “Why We Need More Judicial Activism,” Suzanna Sherry, a law professor at Vanderbilt University, said the Supreme Court had erred more often in sustaining laws than in striking them down. “Too much of a good thing can be bad,” she wrote, “and democracy is no exception.”

The article’s central claim is based upon political science research showing that the Roberts Court has been more likely to reach “conservative” decisions than its predecessors. Liptak reports: In its first five years, the Roberts court issued conservative decisions 58 percent of the time. And in the term ending a year ago, the rate rose to 65 percent, the highest number in any year since at least 1953. The recent shift to the right is modest. And the court’s decisions have hardly been uniformly conservative. The justices have, for instance, limited the use of the death penalty and rejected broad claims of executive power in the government’s efforts to combat terrorism. But scholars who look at overall trends rather than individual decisions say that widely accepted political science data tell an unmistakable story about a notably conservative court.

This distinction is important because the data presented by Liptak suggests that the Roberts Court is such a “conservative minimalist” court. Indeed, it appears to be the most restrained – or least “activist” (if “activism” is defined as willingness to overturn federal statutes or prior precedents) – Court since World War II. According to the data presented with the article in this chart, the Warren, Burger and Rehnquist Courts overturned precedents at an average rate of 2.7, 2.8 and 2.4 per term, respectively. The Roberts Court, on the other hand, has only overturned an average of 1.6 precedents per term. The record on striking down laws shows a similar pattern. The Warren, Burger, and Rehnquist Courts struck down an average of 7.9, 12.5, and 8.2 laws per term, whereas the Roberts Court has only invalidated an average of 3 laws per term. Liptak acknowledges this data at the close of his article, but downplays it with his description: “The Roberts court is finding laws unconstitutional and reversing precedent — two measures of activism — no more often than earlier courts.”

So, while the majority of the Roberts Court’s decisions are “conservative,” the data Liptak summarizes does not appear to have resulted in a more “conservative” legal regime, as the Roberts Court has done relatively little to change the law (at least thus far) compared to its predecessors. This is important, because it effectively refutes claims that there is anything particularly radical or “activist” about the Roberts Court, even if one accepts that it is notably “conservative.”

There is no evidence as yet that the Roberts Court is as willing to challenge federal power as the Court was under Burger (National League of Cities v. Usery) or Rehnquist (Lopez, Morrison, Boerne). There are exceptions, such as some of the Court’s Miranda decisions – which have certainly made the law less protective of criminal suspects and defendants – and Citizens United, but these exceptions are balanced by aggressive liberal opinions in areas like executive power and the death penalty. In sum, even if most of the Roberts Court’s decisions are “conservative” a substantive analysis of the Roberts Court’s decisions does not reveal a significant rightward shift in the law.

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