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How Activist Is the Supreme Court Now -And How Activist Has It Been in the Past? A Review of Two Books that Claim Judicial Revolutions


By KEVIN J. DOYLE


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Friday, Oct. 28, 2005
Thomas M. Keck, The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism (Univ. of Chicago Press 2004)

Jed Rubenfeld, Revolution by Judiciary: The Structure of American Constitutional Law (Harvard Univ. Press 2005)

Keck's Book: An Account of the Rehnquist Court's "Activism"

Throughout his study of the modern Court, Keck argues that - and explores exactly how, in his view -- the conservative Justices' traditional commitment to judicial restraint has often given way to an "activist" approach in furtherance of conservative ends.

To do this, Keck goes all the way back to the constitutional revolution wrought by the New Deal. Keck emphasizes that the post-1937 Court's increasing deference to the legislative will raised profound questions about what the Court's role would be in the constitutional order.


The Warren Court answered those questions, he explains, with a "rights-based constitutionalism" that would protect individual liberty and minority rights from the encroaching modern state.

The chief conservative criticism of the New Deal/Great Society constitutional approach was that it illegitimately expanded the judiciary's role and, in the process, often frustrated the will of the political majority. Keck's essential point is that by the early 1970s, a rights-based constitutionalism had become deeply entrenched. Thus, the rising conservative Court was faced with three choices:

First, it could renew its commitment to judicial restraint and deference to the other branches of government. Second, it could dismantle the liberal rights jurisprudence of the Warren years altogether and build a conservative rights jurisprudence. Or third, it could choose a middle way of maintaining the liberal, rights legacy of the civil rights era while, at the same time, ushering in a new activism emphasizing "conservative" rights.

Ultimately, the Rehnquist Court preserved Miranda rights, upheld some types of affirmative action, and preserved core abortion rights, while revolutionizing the law in areas such as the Eleventh Amendment, Commerce Clause, and First Amendment religion cases. These choices, Keck argues persuasively, suggest that the Court has chosen the third option.

Keck does an admirable job of tracing the themes that are central to the legacy of the Rehnquist Court: judicial restraint; originalism; federalism; limited government; majoritarianism; and property rights. Keck deftly weaves American political and intellectual history in describing the Court's vision of itself and American constitutionalism.

A particularly enlightening part of Keck's account deals with the influential role of the "New Right" critique of liberalism. As the author describes it, the "neocons" rejected the welfare state and liberal egalitarianism, but endorsed the power of free markets, the preservation of individual freedom, and respect for traditional values and institutions such as family and religion.

Keck doesn't go so far as to assert that judicial conservatives have - under the guise of the judicial process -- simply furthered this worldview. But he does suggest, persuasively, that doctrinal shifts in case law tend to reflect the expressed priorities of this school of thought.

If we accept that both the Warren and Rehnquist Courts were activist each in its own way, then why is the latter deemed "the most activist in American history?"


Keck points to three reasons: First, the Rehnquist Court struck down more federal statutes than any other court. Second, the Court, he says, is "overconfident" in its assertion of its own authority to interpret the Constitution. Third, and finally, the Court "recognizes no 'political thickets' in which it is unwilling to exercise its power."

Perhaps the most glaring illustration of why many have deemed the Rehnquist Court activist, is Bush v. Gore -- in which the Court settled the 2000 Presidential election. But Keck goes much further than this seminal decision; his application of his thesis to the Rehnquist Court's decisions is comprehensive. To give just two of many examples, he focuses on the restatement of Commerce Clause law in U.S. v. Lopez and U.S. v. Morrison; and the expansion of states' Eleventh Amendment immunity in Alden v. Maine and Kimel v. Florida Board of Regents.

In the end, Keck reaches a moderate, nuanced conclusion about the Rehnquist Court: In his views, there, both legal principles and political concerns shaped judicial behavior.

It seems quite likely that the same will be able to be said of the Roberts Court as well - though time will have to tell.

Rubenfeld's Book: Constitutional Law at a Philosophical/Theoretical Level

Professor Rubenfeld's book is a structural account of American constitutional law. In some sense, it can be read as a response to Keck's conclusion that an overarching grand theory of constitutional law simply may not be possible. Rubenfeld's is a satisfying theoretical work, constructing an innovative interpretive model for understanding the Supreme Court's precedent. It gives the reader - particularly the legal practitioner, or a layman Court observer - a sense of what is going on in the heady world of legal theory. That said, because a substantial portion of the book consists of analytic philosophy, it is at times a challenging read - though a worthwhile one.

Rubenfeld's structural theory of constitutional law is premised on the following "impossibly simple distinction": "Specific understandings about a constitutional right can take two different forms: there can be specific laws or practices that the right is understood to prohibit; and there can be specific laws or practices that the right is understood not to prohibit." (Emphasis in original). Rubenfeld terms the former Application Understandings, and the latter No-Application Understandings.


Application Understandings are the historical understandings of what a right prohibited. These understandings are foundational to the doctrine surrounding a given right.

In contrast, No-Application Understandings represent instances where constitutional doctrine has deviated from the historical understanding of what a right did not prohibit.

The author offers several examples of Application Understandings that remain with us today: freedom of speech continues to bar prior restraints; the Establishment Clause prohibits a national church; "general warrants" are still unlawful under the Fourth Amendment; and the Fifth Amendment's Takings Clause continues to require compensation when the state exercises eminent domain. These are all "core applications" of a respective right.

Rubenfeld offers examples, as well, of instances where the modern Court has rejected certain No-Application Understandings of those rights: It has held that the First Amendment protects pornography; the Establishment Clause does not prohibit the use of public vouchers to fund a parochial school education; and a municipality may take private property to foster economic development.

The significance of these Application Understandings is that they are the paradigm cases from which the Constitution's doctrinal structure is derived. When a judge decides a case, therefore, he is - on Rubenfeld's view -- not free to depart from the Application Understanding of the right at issue, but he is free to depart from a No-Application Understanding.

The obvious consequence of this theory is that the Framers' understanding of the Constitution's core application is preserved, while the contours of rights expand, consistent with the paradigmatic core applications of those rights.


The linchpin of Rubenfeld's proposal for an interpretation that is both consistent and evolving is paradigm-case reasoning. He provides a rich descriptive account of how, using paradigm case reasoning, the Supreme Court has preserved Application Understandings while discarding No-Application Understandings.

Rubenfeld's argument is clearly an attempt to avoid the pitfalls of both "originalism" (the theory that the Constitution ought to be interpreted to reflect the Framers' understanding of the text) and "living Constitution" reasoning (the theory that the Constitution simply reflects a society's understanding of its values).

Under Rubenfeld's theory, deference is given to historical understandings of the text of the Constitution, while the scope of a right's coverage is allowed controlled growth according to paradigm- case reasoning.

In this respect, it is clear that Rubenfeld's theory is distinct from the "living Constitution" school of thought. His interpretive method is not that which counsel the Court to make reference to "evolving social norms;" it is a text-based, reason-driven method that looks to core cases as established by the original Constitution to project how Constitutional rights should, and should not, expand.

But it seems - at least, to this reviewer -- that there must be something other than paradigm case reasoning that allows a judge to discard a No-Application Understanding. Perhaps it is something extra-constitutional; namely, a liberal principle that demands an expansive conception of rights.

If so, this would not weaken Rubenfeld's theory. Rather, it would simply recognize that constitutional theory is premised, at least in part, on an ever-expanding conception of individual rights. This must be so, because Application Understandings are the bare minimum that a right protects against, while No-Application Understandings represent newer commitments by judges as to what that right prohibits.

Like John Hart Ely and other legal scholars, Rubenfeld is grappling with the apparent paradox of constitutionalism and democracy: Simply put, the paradox is how judges interpreting the Constitution can legitimately maintain the fundamental commitments expressed by the paradigm cases, even if current democratic majorities no longer desire to be bound by them.

In doing so, Rubenfeld constructs a powerful structural model of our Constitution in a strikingly comprehensive way.


Kevin J. Doyle is a law clerk for a federal court of appeals judge.

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