The debate about the nomination of Elena Kagan to the U.S. Supreme Court suggests that no one, except retired Justice David Souter in his largely unreported May 27 Harvard commencement address, has a good word to say about justices who declare statutes unconstitutional. But unless you think that the Court should have upheld state-mandated school segregation in Brown v. Board of Education, there are at least some cases in which judicial activism is not just acceptable, but desirable. The problem is coming up with principles that are not based on whether we like the court decision or not.

Most of the outspoken opponents of judicial activism pretend that the Supreme Court under Earl Warren was the sole perpetrator, but the Court with William Rehnquist and John Roberts Jr. as chief justices has been every bit as willing to find laws to be unconstitutional as its predecessors. The most recent example is Citizens United v. FEC, in which the Court struck down a 1947 law that forbids for-profit corporations from making independent expenditures supporting or opposing candidates for elected office. In 2007, the same justices also set aside plans in Seattle and Louisville, Ky., that were designed to assure reasonable degrees of racial mixing in the schools there. And the Rehnquist Court found unconstitutional a significant number of federal laws as being in violation of the commerce clause and the 10th and 11th amendments to the Constitution. If judicial activism is a disease, it has surely spread to conservative, as well as liberal, justices.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]