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The Political and Academic Debate Over Judicial Activism

Stefanie A. Lindquist and Frank B. Cross

in Measuring Judicial Activism

This chapter outlines the history of the concept of “judicial activism” as well as the basic contours of the political and academic debate over the practice. The chapter explores the development of ... More

This chapter outlines the history of the concept of “judicial activism” as well as the basic contours of the political and academic debate over the practice. The chapter explores the development of the debate over activism within the electorate, political elites, and in the context of Supreme Court confirmation hearings. It also considers the voluminous academic literature on the topic, with generally focuses on the potential for the Supreme Court to act in a “countermajoritarian” fashion and concern over the justices' exercising their substantial powers of judicial review in furtherance of their own policy preferences.Less

The Decision in Miranda v. Arizona

Lawrence S. Wrightsman and Mary L. Pitman

in The Miranda Ruling: Its Past, Present, and Future

This chapter describes the crime and the subsequent police interrogation and trial, all of which led to the 1966 Supreme Court decision ruling that criminal defendants had the right to counsel or to ... More

This chapter describes the crime and the subsequent police interrogation and trial, all of which led to the 1966 Supreme Court decision ruling that criminal defendants had the right to counsel or to remain silent when facing a possible interrogation. The disagreements between justices which led to a number of dissenting opinions are analyzed.Less

The Principal Questions of Constitutional Interpretation

Sotirios A. Barber and James E. Fleming

in Constitutional Interpretation: The Basic Questions

This chapter takes up the principal questions of constitutional interpretation and the assumptions underlying the enterprise of constitutional interpretation by considering William Rehnquist's ... More

This chapter takes up the principal questions of constitutional interpretation and the assumptions underlying the enterprise of constitutional interpretation by considering William Rehnquist's classic criticism of the notion of a “living constitution” and defense of a narrow originalism. It argues that fidelity to the Constitution as written — understood as a scheme of abstract moral principles or concepts like fairness rather than as a code of concrete historical conceptions of those concepts — requires what Ronald Dworkin has called a “fusion” of constitutional law and moral philosophy. Such a philosophic approach would require “judicial activism”, not “judicial deference”. It also would, as Dworkin argues, presuppose a moral objectivity of principle, not, as Rehnquist assumes, moral skepticism.Less

The Warren Court and Its Critics 1962–1969

in The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism

During 1960, the Warren Court's abandonment of restraint in the reapportionment context was one of a dramatic series of doctrinal innovations expanding the scope of constitutional rights. Harlan's ... More

During 1960, the Warren Court's abandonment of restraint in the reapportionment context was one of a dramatic series of doctrinal innovations expanding the scope of constitutional rights. Harlan's and Black's distinctive approaches to constitutional adjudication led each of them to support certain elements of the rights revolution, but they remained sharply critical of others, and they were, in fact, the leading dissenters during the heyday of the Warren Court. Harlan reiterated that the Due Process Clause was an independent guarantee of fundamental fairness, the content of which should be determined by reference to the nation's legal history and traditions. Black and especially Harlan rejected the Court's emerging egalitarianism, as it violated their fundamental conceptions of individualism and limited government.Less

The Justices

Christopher W. Schmidt

in The Sit-Ins: Protest and Legal Change in the Civil Rights Era

This chapter examines the Supreme Court’s confrontation with the sit-in cases. Between 1961 and 1964, the justices faced round after round of appeals of criminal convictions of sit-in protesters. ... More

This chapter examines the Supreme Court’s confrontation with the sit-in cases. Between 1961 and 1964, the justices faced round after round of appeals of criminal convictions of sit-in protesters. These cases were the great aberration of the Warren Court. At a time when the justices confidently reworked one constitutional doctrine after another, often in response to the moral challenges of the civil rights movement and often in the face of considerable public resistance, they broke pattern in the sit-in cases. The Court overturned the convictions on narrow, fact-based grounds, avoiding the looming constitutional question of the limits of “state action” under the Fourteenth Amendment. In late 1963, in the case of Bell v. Maryland, when another minimalist opinion appeared impossible, a majority of the Court, led by Justice Hugo Black, was prepared to explicitly reject the students’ constitutional claim. This outcome was only averted when, in the spring of 1964, with Congress poised to pass the Civil Rights Act, Justice Black’s majority dissolved, and a fractured Court issued yet another narrow opinion, with no majority to resolve the constitutional question one way or the other. This chapter explains why the sit-in cases caused such dramatic difficulties for the Court.Less

The Nixon Court and the Conservative Turn 1969–1980

in The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism

This chapter describes the doctrinal influence of these political developments throughout the 1970s. The rights-protecting constitutional doctrines of the Warren Court were buffeted by the ... More

This chapter describes the doctrinal influence of these political developments throughout the 1970s. The rights-protecting constitutional doctrines of the Warren Court were buffeted by the conservative critiques of both judicial power and modern liberalism itself, but they were also increasingly entrenched as a core feature of contemporary American democracy. Nixon's most important campaign pledge in 1968 regarding the Court was to appoint conservative southerners and “strict constructionists,” and he quickly had four opportunities to do so, as Justices Earl Warren, Abe Fortas, Hugo Black, and John Harlan all retired during his first term in office. Conservatives continued to denounce liberal activism as undemocratic and hence illegitimate, but in a variety of constitutional contexts, they had now articulated clear demands for the active exercise of judicial power on behalf of conservative principles.Less

Roe and Beyond

Tinsley E. Yarbrough

in Harry A. Blackmun: The Outsider Justice

In spite of how it was known to advocate a certain degree of civil liberty, the Warren Court limited its functions and guarantees to civil liberties to the rights mentioned within the Constitution. ... More

In spite of how it was known to advocate a certain degree of civil liberty, the Warren Court limited its functions and guarantees to civil liberties to the rights mentioned within the Constitution. Griswold v. Connecticut, a Warren Court 7–2 majority, attempted to appeal to a certain aspect of marital privacy that concerned the ban on the use of contraceptives. Justice Douglas, its author, aims to incorporate specific constitutional provisions to the Court's decision. The Roe case, a 7–2 Burger Court majority, however, seemed inconsistent with President Nixon's justice principles. Chief Justice Burger was not at ease with how the Court took on the Roe case, as he declared that Baird in Eisendtadt v. Baird was appropriately convicted for handling and distributing such medical material as vaginal foam without a license, and that the marital status of the woman whom he had provided with such was irrelevant to the case. This chapter expresses most of Justice Brennan's opinions regarding abortion and other such concerns and how this and other arguments have served as foundations for the Roe v. Wade case.Less

Frankfurters Failure: The Rise and Decline of Judicial Self-Restraint 1949–1962

in The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism

There were continued signs that the modern Court might follow the lead of Stone and Black in adopting a distinctive new activist role, even as Frankfurter's doctrine of restraint became dominant. The ... More

There were continued signs that the modern Court might follow the lead of Stone and Black in adopting a distinctive new activist role, even as Frankfurter's doctrine of restraint became dominant. The core principle of American constitutional democracy Justice Frankfurter was majoritarianism and the chief danger was judicial tyranny. For him, the essence of the judicial function was the exercise of judgment in balancing competing values. The Warren Court responded to the New Deal constitutional revolution not by abandoning judicial power but by articulating a new set of constitutionally protected rights and liberties. This choice rendered Frankfurter's vision of judicial deference a relic of the past; the Court might someday recover it, but that was unlikely for the foreseeable future.Less

The Normative Classification of Legal Results

Jeffrey Brand-Ballard

in Limits of Legality: The Ethics of Lawless Judging

This chapter draws a formal distinction between optimal and suboptimal results and uses that distinction to define suboptimal-result cases: cases in which the judge would have an ... More

This chapter draws a formal distinction between optimal and suboptimal results and uses that distinction to define suboptimal-result cases: cases in which the judge would have an all-things-considered reason to reach a different result than the result required by law, if the law permitted him to do so. It is explained why a case in which the law requires conviction for a malum prohibitum offense is not typically a suboptimal-result case. Numerous examples that reasonable people might regard as suboptimal-result cases are mentioned. Two assumptions underlying the existence of suboptimal-result cases are identified: that the law is at least partially determinate and that the legal system is imperfect. The chapter also explains why the existence of legal principles would not preclude suboptimal-result cases. It also addresses the question whether all suboptimal-result cases are “hard cases.”Less

Race and the Jurisprudence of Juvenile Justice: A Tale in Two Parts, 1950–2000

Barry C. Feld

in Our Children, Their Children: Confronting Racial and Ethnic Differences in American Juvenile Justice

More than three-quarters of a century ago, World War I curtailed European immigration and created a demand for African-American southern laborers to work in northern factories in the United States. ... More

More than three-quarters of a century ago, World War I curtailed European immigration and created a demand for African-American southern laborers to work in northern factories in the United States. The issue of race has had two distinct and contradictory influences on the juvenile justice theory and practice during the second half of the twentieth century. Initially, the Warren Court's due process revolution and Gault attempted to enhance civil rights, protect minority citizens, and limit the coercive powers of the state. But Gault's provision of procedural rights at trial legitimated punishment and fostered a procedural and substantive convergence with criminal courts. Three decades of judicial decision, legislative amendments, and administrative changes have converted the juvenile court into a scaled-down, second-class criminal court that provides neither therapy nor justice for young offenders.Less

Subsidiarity, the Judicial Role, and the Warren Court’s Contribution to the Revival of State Government

Vicki C. Jackson

in Federalism and Subsidiarity: NOMOS LV

This chapter comments on the arguments advanced by Steven G. Calabresi and Lucy D. Bickford regarding the principle of subsidiarity as it relates to the European Union's quasi-federal system and the ... More

This chapter comments on the arguments advanced by Steven G. Calabresi and Lucy D. Bickford regarding the principle of subsidiarity as it relates to the European Union's quasi-federal system and the United States's constitutional system. It first questions the aptness of the U.S.-EU comparison and the conception of subsidiarity as being primarily about externalities, with particular emphasis on the problem of “bricolage” and constitutional multifunctionalism. It then notes the lack of a basis in comparative experience for strong judicially enforced versions of subsidiarity and goes on to propose an alternative “proceduralist” approach to the judiciary's role in advancing subsidiarity in the U.S. constitutional context. It also looks at the Warren Court and how it reinforced federalism by nationalizing the Bill of Rights in the U.S. Constitution, thus dramatically improving the legitimacy and efficacy of state governments.Less

: The History of Habeas Review of State Criminal Cases

in Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Great Writ

This chapter investigates the development of habeas review of state convictions and sentences in noncapital cases under 28 U.S.C. § 2254. The Habeas Corpus Act of 1867 expanded the availability of ... More

This chapter investigates the development of habeas review of state convictions and sentences in noncapital cases under 28 U.S.C. § 2254. The Habeas Corpus Act of 1867 expanded the availability of the writ in response to a major political and social crisis that created a serious risk of abuse of the government's power to detain. For state prisoners, Congress preserved traditional habeas review as authorized by the 1867 act, but enacted a new statute, 28 U.S.C. § 2254, that introduced revised rules of habeas procedure. Habeas became a crucial federal weapon in a new war of federalism during the Warren Court era. Justice William Rehnquist's view—that habeas should be limited to certain fundamental claims—did not prevail. The war of federalism that raged in the 1960s has ended, but the habeas law designed to fight it still stands, devoid of meaning.Less

Elites, Ideology, and the Rise of the Modern Court

Neal Devins and Lawrence Baum

in The Company They Keep: How Partisan Divisions Came to the Supreme Court

This chapter tracks the period up to 1985, a time when ideology was less relevant to judicial appointments and there was not a well-established conservative legal network. Limited polarization meant ... More

This chapter tracks the period up to 1985, a time when ideology was less relevant to judicial appointments and there was not a well-established conservative legal network. Limited polarization meant that there were liberal Republicans and conservative Democrats. It also meant that presidents paid less attention to ideology when nominating Justices and that Justices responded to elite groups that were not divided along ideological lines. During the New Deal, for example, Democrat and Republican elites backed economic regulation but were sharply split on civil rights and liberties. During the 1950s to 1980s, elite Democrats and Republicans leaned to the left; for this very reason, moderately conservative Justices became increasingly liberal during their tenure on the Court.Less

After Brown

Justin Collings

in Scales of Memory: Constitutional Justice and Historical Evil

This chapter traces the U.S. Supreme Court’s mnemonic jurisprudence from Brown v. Board of Education to the present. It shows how, despite occasional instances of redemptive memory—especially during ... More

This chapter traces the U.S. Supreme Court’s mnemonic jurisprudence from Brown v. Board of Education to the present. It shows how, despite occasional instances of redemptive memory—especially during the Warren Court era (1953–1969)—the parenthetical mode of memory continued to predominate. The chapter shows how debates over the legacy of slavery and segregation gradually shifted into debates over the legacy of Brown. Anti-classification readings of Brown have been underwritten by narratives of parenthetical memory, whereas anti-subordination readings of Brown have relied on narratives of redemptive memory. The debates have been most poignant in the context of affirmative action and other race-conscious remedies for de jure or de facto race discrimination. In recent years, the parenthetical mode has once again gained the upper hand.Less

From the Southern to the U.S. Middle District of Florida, 1950s–1962

James M. Denham

in Fifty Years of Justice: A History of the U.S. District Court for the Middle District of Florida

This chapter provides a brief history of the U.S. Southern District of Florida from its creation in 1847 to the creation of the U.S. Middle District of Florida in 1962, focusing primarily on ... More

This chapter provides a brief history of the U.S. Southern District of Florida from its creation in 1847 to the creation of the U.S. Middle District of Florida in 1962, focusing primarily on Florida’s dramatic population growth, and its legal and demographic features in the decades leading up to the creation of the new district in 1962. The expansion of federal jurisdiction of crime is covered in those years as is the role of senators in the appointment of federal judges. A brief survey of the Warren Court rulings and their context for federal jurisprudence in the district are included, as are the background of the judges and other court officials at the time the new district was created.Less

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Edward A. Jr. Purcell Jr.

in Antonin Scalia and American Constitutionalism: The Historical Significance of a Judicial Icon

This chapter traces Justice Antonin Scalia’s rise from law school to a position on the Supreme Court and then his emergence as a judicial icon representing “conservatism” and “originalism” in ... More

This chapter traces Justice Antonin Scalia’s rise from law school to a position on the Supreme Court and then his emergence as a judicial icon representing “conservatism” and “originalism” in opposition to the legacy of the Warren Court. It locates his rise in his political commitment to the Republican Party, his appeal to President Ronald Reagan and Attorney General Edwin Meese III, and his triumph over his fellow conservative intellectual Robert Bork for the leadership of judicial conservatism and the effort to promote constitutional originalism. Once established on the Court, Scalia’s influence grew until he and his jurisprudence became significant political issues for both national parties, especially in subsequent judicial confirmation hearings and presidential elections. When Scalia died in early 2016, his replacement became a major issue in the presidential campaign, and the new Trump administration promised to replace him with the most Scalia-like candidate it could find.Less

A Fourth Amendment Framework

in Privacy at Risk: The New Government Surveillance and the Fourth Amendment

This chapter presents an interpretation of the Fourth Amendment in relation to government surveillance in the United States. It argues that when contemplating surveillance, government should be ... More

This chapter presents an interpretation of the Fourth Amendment in relation to government surveillance in the United States. It argues that when contemplating surveillance, government should be required to provide justification proportionate to the intrusiveness of the surveillance and to seek third-party authorization in all nonexigent circumstances. The chapter also shows that the post-Warren Court's application of the balancing analysis has attributed far too much weight to the government's interests and far too little to the individual's.Less