Vol. 15 No.2 (February 2005), pp.135-138
THE MOST ACTIVIST SUPREME COURT IN HISTORY: THE ROAD TO MODERN JUDICIAL CONSERVATISM, by Thomas M. Keck. Chicago: University of Chicago Press, 2004. 370 pp. Paper. $24.00. ISBN: 0-226-42885-0. Cloth. $65.00. ISBN: 0-226-42884-2.
Reviewed by Craig Emmert, Department of Behavioral Science, University of Texas - Permian Basin. Email: email@example.com .
In THE MOST ACTIVIST SUPREME COURT IN HISTORY: THE ROAD TO MODERN JUDICIAL CONSERVATISM, Thomas M. Keck traces the history of the U.S. Supreme Court’s policymaking role from 1937 to the present. He maintains that despite extensive criticism of the Warren Court’s liberal activism, the Rehnquist Court – led by Justices William Rehnquist, Antonin Scalia, and Clarence Thomas – has enacted its own brand of conservative activist policymaking. At the same time, Justices Sandra Day O’Connor and Anthony Kennedy have chosen to “preserve the liberal, rights-based activism of the Warren Court, while also endorsing the newer conservative activism . . . [this choice] explains why the Rehnquist Court has dramatically transformed constitutional law in a conservative direction in some areas, while reaffirming and even expanding landmark liberal precedents in others” (p.7).
The narrative begins with the Court seeking a new role after the “switch in time” in which the Court abandoned its traditional emphasis on limiting the powers of the elected branches. Keck examines the approaches taken by Justices Felix Frankfurter, Harlan Fiske Stone, and Hugo Black. Frankfurter urged “an extreme form of deference” to Congress and the President. On the other hand, Black “emphasized the importance of enforcing the specific provisions of the original Bill of Rights, while Stone sought to protect those ‘preferred freedoms’ (such as the freedom of speech) that are essential to the democratic political process, and to ensure equal treatment for those groups (such as racial minorities) who are likely to be mistreated by elected political institutions” (p.18). Keck makes a strong case that these justices’ opinions in the late 1930s and 1940s “shaped constitutional debate . . . [and laid] key foundations for both modern liberal and conservative constitutionalism” (p.18).
Though the process was gradual, Stone’s vision would eventually be realized in the 1960s by the Warren Court’s liberal majority. From the late 1930s until the early 1960s, Black was an enthusiastic participant in the individual rights revolution. But, while Black “was standing still, the Warren Court pushed past him, and his strict textualism, once a force for rights-based judicial activism, became a call for restraint” (p.88). By this point, Black believed that the Court had moved beyond enforcing the commands of the constitutional text to simply enacting its members’ own preferences into law. He often joined the dissenting opinions of Justice John Marshall Harlan, the member most [*136] critical of the Warren Court’s liberal judicial activism.
Justice Harlan’s bases for criticizing the Warren Court differed substantially from those of Black. Though both opposed the “arbitrary” use of judicial power, “Harlan consistently held that there was an undefined core of judicially enforceable due process liberty; that reasoned judgment was an indispensable element of constitutional adjudication; and that this judgment should be tempered by a healthy dose of history and self restraint. Black rejected this balancing approach in favor of an absolutist conception of textually guaranteed rights and a firm refusal to extend or modify those rights” (p.175).
Harlan extended his criticism beyond the zealous use of judicial power to the substantive content, the “unrestrained egalitarianism,” of many of the Warren Court’s decisions. Both Black’s and Harlan’s opinions would contribute significantly to the conservative critique of Warren Court activism, to the development of the doctrine of constitutional originalism and, later, to the development of the Rehnquist Court’s conservative activism (p.103).
During the 1950s and 1960s, law professors, including Alexander Bickel, Philip Kurland, and others, criticized the Warren Court members for their willingness to take on political questions and for opinions that were, in the critics’ eyes, poorly reasoned and written. These criticisms, along with the views of Black and Harlan, were developed and expanded in the 1970s and later by legal scholars such as Robert Bork, Raoul Berger, and Richard Epstein, among others. Conservative criticism shifted from merely decrying the Court’s antimajoritarianism to arguing for limited government and against liberal “social engineering” (pp.103, 142, 183-186). When conservatives gained ascendancy on the Court, these views would lead to development of a new conservative constitutional jurisprudence.
Richard Nixon was elected president in 1968; a substantial component of his campaign was criticizing the Warren Court’s liberal activist decisions. Almost immediately, he had the opportunity to appoint four justices, and soon conservatives began “to articulate a new argument for judicial activism” (p.143). During the Burger Court years, conservative constitutionalism did not go very far, but some seeds that were planted would come to fruition later during the Rehnquist Court era. At the same time, the Burger Court continued and even expanded some of the liberal judicial policies of the Warren Court in cases such as ROE v. WADE (1973).
In the 1980s and early 1990s, Presidents Reagan and Bush were able to shift the Court in a more consistently conservative direction. But it was not completely clear what policymaking role the Rehnquist Court would adopt. The Court members had three options. First, they could adopt a posture of judicial deference to the elected branches. This option was rejected by the Court’s members. By this point, conservatives as well as liberals looked to the Court to protect individual rights. As Keck points out, “[T]he rise of . . . conservative public interest law firms highlighted the increasingly rights-based character of constitutional conservatism” (p.181). Cases were brought in the economic area on the basis of limited government [*137] (commerce clause, the tenth amendment, property rights), and in the civil liberties and civil rights area in cases opposing affirmative action, policies denying government resources to religious groups, and the like (p.182). The second option was to adopt a posture of conservative activism. Justices Scalia, Thomas, and Rehnquist have essentially adopted this approach. They have “drawn a sharp, categorical distinction between those contexts in which the original constitutional text declares limits that the courts should actively enforce, on the one hand, and those contexts in which the text is ‘silent’ and thus calls for restraint, on the other” (p.201). This means using judicial power to protect property rights, limit governmental efforts to regulate business, and to impose social or economic equality, and deferring to the elected branches on issues such as the death penalty, school prayer, and abortion restrictions. Even when the conservatives have formed a majority, however, the holding has often been significantly limited by Justice O’Connor’s or Justice Kennedy’s opinions (pp.200-203).
The Court’s remaining justices – Stephen Breyer, Ruth Bader Ginsburg, David Souter, and John Paul Stevens – have favored the third option: continued liberal activism. These justices have been able to maintain and, in a few instances, even extend liberal rights protections when they have convinced either Kennedy or O’Connor to join them. Cases such as LAWRENCE v. TEXAS (2003) and GRUTTER v. BOLLINGER (2003) clearly illustrate this point (pp.199-200).
Because it has implemented a new conservative constitutional jurisprudence while maintaining many of the liberal policies of the Warren and Burger Courts, Keck has dubbed the Rehnquist Court the “most activist court in history.” This is so for three specific reasons. First, since 1994, the Court has overturned more federal laws than at any other time in its history (p.203). Second, as illustrated by the case of BOERNE v. FLORES (1997), the Court has “declared its own authority in a confident tone, as its leading justices are committed to a strong conception of judicial supremacy” (p.203). Third, the Court has been willing to intervene in many important areas of law and policy. As Keck explains, “the later Rehnquist Court recognizes no ‘political thickets’ in which it is unwilling to exercise its power. BUSH v. GORE  is the best example here” (208). Keck concludes the book with an attempt to explain the Rehnquist Court’s policymaking activism. He concludes that it is neither due to “Law without Politics” nor “Politics without Law.” Instead it is a result of the development of constitutional jurisprudence in the post-New Deal period and the interaction between law and politics. These factors are exemplified both by the continued liberal activism and the limited conservative activism of Justices O’Connor and Kennedy (pp.271-272).
My evaluation of Keck’s book is generally positive. It is interesting and very readable. To me, discussion of the development of modern jurisprudence through the constitutional debates of the past is the most interesting part of the book. Keck does a good job in bringing together criticisms of the Warren Court from the court’s own justices, law [*138] professors, and other observers. He makes a convincing case that the trajectory of the Supreme Court was not set, but a result of historical circumstances and the justices’ own choices at crucial junctures.
Keck makes a compelling case for the Rehnquist Court’s very high level of judicial activism. I agree that for too long judicial activism has been equated with liberal judicial decisions. His book makes a clear statement that that the same Court may issue both liberal activist decisions and conservative activist decisions.
The weakness of the book, in my judgment, is that there is little that is new in terms of coverage of the Rehnquist Court itself. Most scholars and many others will already understand that the Court is highly activist, usually in a conservative direction, but sometimes in a liberal direction. Most know that O’Connor and Kennedy are nearly always the decisive votes on the Court, that they sometimes join their liberal colleagues to reach liberal case outcomes, and that they frequently limit the reach of conservative decisions by failing to agree to categorical doctrinal rules.
Having said this, Keck weaves an intricate narrative, tying key strands of the justices’ opinions, court critics’ writings, political events, and doctrinal developments together. It is a convincing history of the Supreme Court since 1937, and a useful description of the Rehnquist Court. While it does not provide much for attitudinalist or rational choice scholars, I would recommend it for general courses on the Supreme Court, the judicial system, or American politics.
BOERNE v. FLORES, 521 US 507 (1997).
BUSH v. GORE, 531 US 98 (2000).
GRUTTER v. BOLLINGER, 123 S.Ct. 2325 (2003).
LAWRENCE v. TEXAS, 539 US 558 (2003).
ROE v. WADE, 410 US 113 (1973).
© Copyright 2005 by the author, Craig Emmert.
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