In this New Republic piece, “The Battle Over the Court,” Profs. Barry Friedman and Jeffrey Rosen write:
Liberals during the Warren Court era also relied on courts to hand them victories that eluded them in the political arena. Of course, during the Warren era, activism usually meant asking the Supreme Court to bring a few state outliers into line with a national consensus — on racial discrimination, for example. By contrast, Roberts Court-era conservatives are urging unelected judges to strike down landmark federal laws that passed over their objections, at least some of which command broad national support.
In my view, this mischaracterizes the decisions that conservatives usually object to as “activist.” Consider, for example, Exhibit A in the usual conservative critique of judicial overreaching, Roe v. Wade. That decision, which invalidated the abortion regulations of nearly every state, cannot be regarded as an effort to “bring a few state outliers into line.” Nor can the Furman decision and its companions, in which the court struck down every death-penalty law in the country. Nor can the many decisions during the 70s and 80s that nixed legislatively enacted programs that provided aid to children attending parochial schools. And so on.
If one compares the allegedly “activist” decisions of the Rehnquist and Roberts courts – Citizens United, say, or its federalism-inspired rulings on the reach of Congress’s regulatory authority – with the decisions referred to in the paragraph above, it seems that the former involve far less second-guessing of the considered judgments of the political community than do the latter.
– Richard Garnett is professor of law and associate dean at Notre Dame Law School.