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Activism As Restraint: Lessons From Criminal Procedure, Stephen F. Smith

Journal Articles

In this Article, I advance a limited defense of judicial activism by the Burger and Rehnquist Courts in constitutional criminal procedure. My basic claim is that even if the so-called "Counterrevolution" in criminal procedure is viewed as activist -- as I think much of it must be -- it nevertheless was normatively defensible as a necessary condition, in a “second-best” world, of reaching an equilibrium closer to the judicial restraint model than would be possible if activism were only a one-way ratchet. Though my thesis supplies a justification for the Burger and Rehnquist Court's basic approach to legal change, it …