Judicial Activism Essay

It is perhaps unsurprising that the liberal court led by head 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 cautious court that followed, led by Chief Justice Warren E. Burger from 1969 to 1986, was even more activist, liaison down laws in almost 9 share 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, hurt of Engagement, Clark M. Neily III of the Institute for Justice, a libertarian group, calculated that the Supreme chat up 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 judgeship to be more active but rejected the pronounce 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 cracking the impairment of the discussion back to activism. Id just remind conservative commentators, he said, that for years what weve 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. Obamas remarks, Chief Justice Roberts broke with his usual conservative allies and voted with the courts four liberals to uphold the law. In a joint dissent, the four conservatives said the legal age was wrong to portray its ruling as judicial modesty when it amounts instead to a vast judicial overreaching. In a recent essay, Why We get 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. in like manner much of a good thing can be bad, she wrote, and democracy is no exception.The articles central claim is based upon political recognition 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. Andin 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 courts 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 governments 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 humanity 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 demonstrate 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 Courts 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 unify of Cities v. Usery) or Rehnquist (Lopez, Morrison, Boerne). There are exceptions, such as some of the Courts Miranda decisions which have certainly made the law less protective of deplorable 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 Courts decisions are conservative a substantive analysis of the Roberts Courts decisions does not reveal a significant rightward shift in the law.