Law Commons^™

Is The Rehnquist Court An "Activist" Court? The Commerce Cause Cases, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In United States v. Lopez, the Supreme Court, for the first time in sixty years, declared an act of Congress unconstitutional because Congress had exceeded its powers under the Commerce Clause. In 2000, the Court reaffirmed the stance it took in Lopez in the case of United States v. Morrison, once again finding that Congress had exceeded its powers. Are these examples of something properly called "judicial activism"? To answer this question, we must clarify the meaning of the term "judicial activism." With this meaning in hand, the author examines the Court's Commerce Clause cases. The answer he …

Judicial Activism: The Good, The Bad, And The Ugly, Arthur D. Hellman

Articles

No matter how judges are selected, sooner or later some unfortunate candidate will be labeled a "judicial activist." One has to wonder: Does the term have any identifiable core meaning? Or is it just an all-purpose term of opprobrium, reflecting whatever brand of judicial behavior the speaker regards as particularly pernicious? Implicit in this question are several important issues about the role of courts in our democratic society.

I take my definition from Judge Richard Posner, who describes activist decisions as those that expand judicial power over other branches of the national government or over state governments. Unlike other uses …