Copyright 2004 ALM Properties, Inc. All Rights Reserved.  
New York Law Journal
December 7, 2004, Tuesday
SECTION: NEWS; Pg. 2

LENGTH: 1306 words

HEADLINE: LAWYER'S BOOKSHELF;
The Most Activist Supreme Court in History: the Road to Modern Judicial Conservatism

BYLINE: Reviewed by William E. Hellerstein; William E. Hellerstein is professor of law at Brooklyn Law School and teaches Constitutional Law, Criminal Procedure and Civil Rights Law.

BODY:
Not since the mid-1930's, when an activist Supreme Court majority thwarted congressional enactment of President Roosevelt's New Deal program and precipitated a constitutional crisis in the form of President Roosevelt's court-packing plan, has presidential power to name justices to the Court been of such critical importance to us as a Nation. The re-election of President George W. Bush and the likelihood that, during the president's second term, there may occur as many as three or four vacancies on the Supreme Court, including the Chief Justiceship, makes Professor Thomas M. Keck's book a welcome and extremely timely book.

Professor Keck, who teaches political science at Syracuse University's Maxwell School of Citizenship and Public Affairs, has given us a well-written book that describes how the Rehnquist Court, whose dominant members were nominated and confirmed under the banner of "judicial restraint" became, in his words, "the most activist Supreme Court in history." It is an activism, Professor Keck tells us, that is unique. It is not an activism that has reduced to rubble the rights-based decisions of the Warren Court, but it is an activism which disregards regularly the nation's majoritarian will as reflected in the laws passed by Congress. It is also an activism that evidences the hypocrisy of those justices who, while they pay lip service to the virtues of judicial restraint, impose on the nation, as a matter of constitutional law, a substantive agenda which they favor. Such is the essence of Professor Keck's thesis, and it finds strong support in the facts, which he lays out, that between 1994 and 2003, the Rehnquist Court struck down federal statutes more frequently than at any other time in history, "regularly declared its own authority in an overconfident tone" [see, e.g., City of Boerne v. Flores, 521 US 507 [1997], and "recognizes no 'political thickets' in which it is unwilling to explore its power" [as in Bush v. Gore, 531 US 938 [2000]]. Professor Keck also provides an abundance of charts and statistical analyses which not only buttress his thesis, but add value to the book as a data compendium.

The Rehnquist Court's activism is a far cry from the "activist" rights-based jurisprudence for which the Warren Court has been so maligned. Antecedents to the Warren Court's jurisprudence can be found in Justice Harlan Fiske Stone's famous footnote in United States v. Carolene Products Co, 304 US 144 [1938], which stated that laws which encroached on individual rights and discriminated against "discrete and insular minorities," would be scrutinized more closely than those which regulated matters of economics, health, or safety. With respect to the latter, the Warren Court was extremely deferential to legislative judgment, perhaps to a fault, as some have argued.

Not so the Rehnquist Court. As Professor Keck shows, the Rehnquist Court's idea of judicial restraint is quite different. Although the current Court places great emphasis on a tight reading of the Constitution's text and, at times, an assessment of custom and usage at the time of the Constitution's adoption, approaches which counsel judicial restraint, the Court's dominant justices also believe strongly in limited government, especially a limited federal government. As evidenced by the many Acts of Congress left for dead by the Court's Commerce Clause, Eleventh Amendment, and sovereign immunity decisions of the last 10 years, when the institutionally conservative principle of judicial restraint conflicts with the substantive conservative principle of limited federal government, judicial restraint is easily discarded.

To enable us to understand how the Court arrived at its present stance, Professor Keck provides an excellent synopsis of the evolution of the judicial conservatism that the current Court embraces. His summary is divided into three parts: the "roots" of judicial conservatism from 1937 to 1969; the conservative "turn" in American politics from 1969 to 1994, and how it affected the Court; and finally, the activism of the current Court, which begins in earnest with the Court's 1994 Term. Professor Keck describes how the principles of judicial conservatism took root initially in the dissenting opinions of Warren Court justices, Felix Frankfurter, John Marshall Harlan, and, once the Bill of Rights incorporation controversy resolved itself, in the dissents of Justice Hugo L. Black. He shows how the views expressed by these justices grew in strength as respected academics, such as Alexander Bickel, Phillip Kurland, and Robert Bork, embraced them and attacked key Warren Court decisions as unprincipled and how these attacks merged with conservative political developments that began with Senator Barry Goldwater's presidential run in 1964, and reached full throttle in Richard M. Nixon's successful 1968 presidential campaign, in which he leveled a frontal attack on the Warren Court. Professor Keck then presents a clear and concise description of how the Court, since 1994, has repeatedly overriden the will of Congress to impose its own view of the allocation of power between Congress and the States, and between Congress and the Court itself.

However, there is a second tale to be told about the current Court, and it is one well presented by Professor Keck. It is a tale of two justices, Sandra Day O'Connor and Anthony M. Kennedy, whose pragmatic, at times cautious, approach to decision-making and the Court's institutional role, serves to restrain and inhibit the Court's progression to a complete adoption of conservative principles. As Professor Keck points out, these two justices, either together or separately, have with their controlling votes, protected some of the Burger Court's rights-based decisions, such as Roe v. Wade, 410 US 113 [1971], and have even led the way to decisions that the Warren Court may not have embraced, such as Romer v. Evans, 517 US 620 [1996] and Lawrence v. Texas, 539 US 558 [2003], both landmarks in the protection of gay rights. Thus, Professor Keck is right to denominate the work of Justices O'Connor and Kennedy a "splintering of judicial conservatism." But it is not a splintering that has retarded the Rehnquist Court's aggrandizement of judicial power at the expense of Congress in our constitutional framework, which is the main theme of the book. When the issue before the Court has been congressional power to legislate pursuant to its Article I or Fourteenth Amendment powers, Justices O'Connor and Kennedy have not only joined with the Chief Justice and Justices Scalia and Thomas to curtail congressional powers, they frequently have led the way.

Because Professor Keck writes from a political science perspective, his book provides a broader dimension than others which have analyzed the Rehnquist Court in largely legalistic terms. Thus, he shows us how decisions of the Supreme Court are not easily separated from the broader trends of political and social change that are at work in our country, a reality too often overlooked by constitutional litigators as they fashion strategies, and by those legal academics and members of the public who harbor beliefs that the Court operates in a legal vacuum. If one is looking to understand the relationship between constitutional decision-making and the political and social forces which may influence that process, especially in the immediate aftermath of the 2004 presidential election and with the looming prospect of vacancies on the Court, Professor Keck's book more than amply fills the bill.

LOAD-DATE: December 13, 2004