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

The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism. By Thomas M. Keck. Chicago: University of Chicago Press, 2004. 370p. $65.00 cloth, $24.00 paper.

The title of this work presents its thesis at the macrolevel, but it is with limited support that the author claims that the current Supreme Court is the “most activist.” The core argument of the book is actually presented in the last chapter in clear fashion. There, the author explicitly refers to the Court as the O'Connor Court since he determines that it is largely the blend of political conservatism and judicial moderation, long displayed by Sandra Day O'Connor, that encapsulates the modern Court. So the thesis is no more than stated as something of a straw man at the outset. Thomas Keck “reveals” that the political ideology (liberal/conservative) dimension of justices is not identical to the judicial activism/restraint dimension of their judicial perspectives. These are and always have been two separate dimensions, even if they may not be orthogonal. It is not clear why this is the first major point of the discussion.

The book is organized into three parts after the Introduction. The first three chapters focus on the post–New Deal Court and the Warren Court. This richly outlines the debates among the justices, ranging from Chief Justice Harlan Stone's Footnote 4 in the Carolene Products case, through Justice Hugo Black's total incorporation view, to Felix Frankfurter's traditional and strict judicial deference. By the end of this section, the Warren Court's rights-based activist jurisprudence is treated, in contrast with scholars and several justices. Each of these chapters follows a standard format, including a large number of short or excerpted quotations from the protagonists. Each chapter ends with some very limited treatment of the academic debate that reflects these same considerations. The value of this discussion is that it well provides the reader with an outline of the judicial debates that have driven the development of constitutional law in this country since the “switch-in-time that saved nine” in 1937.

Part II seems to be a prelude to the discussion of the Rehnquist Court (post-1994), and it could be shortened dramatically. The debate does change somewhat during this period of the Burger Court and the early Rehnquist Court. The part contains broad generalizations about the country's turn to the political right during the 1970s and 1980s. These may reflect a “trend” or a climate, but the discussion of these features in American politics adds little to the thesis.

These first two parts, Chapters 1–5, are interesting and heavily laden with the general outline of the activism and restraint debate over the past two-thirds of a century. They are largely supported by “clips”—brief quotations from various (selected) opinions or scholarly writings that Keck uses to illustrate or support the point he makes. There are too many of these quotations and not enough glue or text between them.

The last part is the core of the author's argument and his case for the Rehnquist Court's place in constitutional jurisprudence. It is the heart of the book, and after the Conclusions, it is the part I would assign next, for graduate students who are studying judicial activism or modern constitutional development. As noted below, it suffers from some difficulties. However, it is as clear a statement of the Rehnquist Court's jurisprudence as I have seen. It captures the essentials of the divisions and the tensions that underlie this court's decisions and the differences among its members.

It is not clear why the “Rehnquist Court” is divided into Early and Late periods, broken at 1994 when the current “natural court” came into existence. I am left with the question of what the differences between these two “courts” are in terms of constitutional jurisprudence and activism. Keck does not tell us. If nothing else, the division should be made when Justice Clarence Thomas assumed his position on the Court, since at that moment, the core conservative activists were in place (1991).

The Most Activist Supreme Court in History has some flaws. Small items include incorrectly cited references. Footnote 1 in the book refers to Tushnet 1996b, but there is no such reference listed. The endnotes (rather than footnotes), as always, make it difficult to follow the author's substantive discussion at places in the text. The larger issues relate to the use of tabular data with little reference and no discussion in the text of what they “prove.” The material presented in Tables 2.1 and 2.2 supposedly prove that the Rehnquist Court is the most activist, but with little discussion of why unconstitutional holdings are the appropriate measure for activism. There are other measures. Table 2.2 indicates that the Taft Court, the Late Warren Court, and the entire Burger Court were more “activist” than the Early or the Late Rehnquist Courts, in terms of local and state statute invalidation. Table 6.1 is the core display of the thesis, and it would be better presented at the outset of the work, rather than at the end.

Lastly and most importantly, the selection and discussion of particular cases to illustrate the author's argument appear to be a “random,” scattered selection. That is, it is not that the cases were selected randomly but that there is no evidence of clear, systematic, or comprehensive criteria for the presentation of these particular materials to support the thesis. (Tables 6.3 and 6.4 contain the list of all the cases in which the Rehnquist Court ruled federal or state statutes, respectively, unconstitutional from 1994 to 2002. What about the same information for the Early Rehnquist Court? The cases are not all treated or used in the text to support the thesis. They are not even ordered, chronologically or alphabetically, so far as I can tell in the tables.)

Still, with all this said, the author has captured the last two decades of Supreme Court decisions in an interesting and important way. He has developed the casual impressions of many observers that the Court has operated with a split personality, in an enlightening manner. He has captured the positions of Justices O'Connor and Anthony Kennedy—a distinct, if limited, view of activism and a unique jurisprudential case-by-case “minimalist” approach to deciding these issues. That is made quite clear in the latter portion of this book, which is an accessible presentation of material on the modern Supreme Court.