Abstract
Within two decades of the republic’s inception, some two hundred years ago, the Supreme Court of the United States emerged as a powerful political actor. In the 1950s and 1960s, however, the Court boldly undertook a new mission that resulted in judicial policy-making of unprecedented scope and impact. The Court and its controversial policies provoked a political backlash that contributed to five victories for the Republican Party in the next six presidential elections. Yet, despite the efforts of Republican presidents, who since 1968 have replaced seven of the nine Supreme Court justices, the activism of the Court has waned, if at all, only slightly, and, of equal importance, has percolated down the judicial hierarchy to the lower federal and state appellate and trial courts. The proper role of judicial power in a democracy continues to be one of the most contentious contemporary political issues in the United States at the same time that the activism of its courts is emulated by more and more democratic nations throughout the world.
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Notes
John Jay, the first chief justice (1789–95), served simultaneously as U.S. ambassador to England, and Oliver Ellsworth, the third chief justice (1796–99), for six months was both ambassador to France and chief justice. For a discussion of Jay and Ellsworth’s subservience to the executive see Alpheus T. Mason, ‘Extra-Judicial Work for Judges: The Views of Chief Justice Stone,’ Harvard Law Review 67 (1953), 193–216.
Ralph Lemer, ‘The Supreme Court As Republican Schoolmaster,’ in Philip B. Kurland (ed.), Supreme Court Review (Chicago: University of Chicago Press, 1967).
Alexis de Tocqueville, Democracy in America, ed. Phillips Bradley (New York: Knopf, 1945), p. 280
Remer Tyson, ‘Mandela Offers More Details of a New South Africa,’ The Detroit Free Press (19 June 1990), pp. 1A, 4A.
Henry P. Johnston (ed.), The Correspondence and Public Papers of John Jay (New York: Putnam’s 1890–93), HI, pp. 486–9.
See Marshall’s opinions in Fletcher v. Peck, 6 Crunch 87 (1810) and Ogden v. Saunders, 12 Wheaton 213 (1827) and Edward S. Corwin, The ‘Higher Law’ Background of American Constitutional Law (Ithaca, NY: Cornell University Press, 1955).
Gregory A. Caldeira and Donald J. McCrone, ‘Of Time and Judicial Activism: A study of the U.S. Supreme Court, 1800–1973,’ In Stephen C. Halpem and Charles M. Lamb (eds), Supreme Court Activism and Restraint (Lexington, MA: D. C. Heath, 1982), pp. 103–27.
Roscoe Pound, ‘Mechanical Jurisprudence,’ Columbia Law Review 8 (December 1908): 605–23.
For an argument that courts should forgo the assumption of such duties, see Nathan Glazer, ‘Should Judges Administer Social Services?’ The Public Interest 50 (Winter 1978): 64–80.
Howard Abadinsky, Law and Justice (Chicago: Nelson-Hall, 1988), pp. 81–2.
Gary L. McDowell, Equity and the Constitution: The Supreme Court, Equitable Relief, and Public Policy (Chicago: University of Chicago Press, 1982), p. 4.
Donald Horowitz, ‘The Courts as Guardians of the Public Interest,’ Public Administration Review 37 (March-April 1977): 150.
Arthur Selwyn Miller, Toward Increased Judicial Activism: The Political Role of the Supreme Court (Westport, Conn.: Greenwood Press, 1982), pp. 259–60.
Abram Chayes, The Role of the Judge in Public Law Litigation,’ Harvard Law Review 89 (May 1976): 1281–316.
Quoted by Lyle Denniston, ‘Justice Brennan Quits Court,’ The Burlington (Vermont) Free Press, 21 July 1990, p. 1 A.
John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971).
Michael J. Perry, The Constitution, 77ze Courts, and Human Rights: An Inquiry Into the Legitimacy of Constitutional Policymaking by the Judiciary (New Haven, Conn.: Yale University Press, 1982), p. 99.
Richard G. Stevens, ‘Felix Frankfurter,’ in Morton J. Frisch and Richard G. Stevens (eds), American Political Thought, 2nd edn (Itasca, II.: Peacock Publishers, 1983), pp. 337–60.
See Robert H. Bork, The Tempting of America: The Political Seduction of the Law (New York: The Free Press, 1990).
Nathan Glazer, ‘Towards an Imperial Judiciary?’ The Public Interest 41 (Fall 1975): 104–23;
Lino A. Graglia, Disaster by Decree: The Supreme Court's Decisions on Race and Schools (Ithaca: Cornell University Press, 1976);
Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (Cambridge: Harvard University Press, 1977).
Donald L. Horowitz, The Courts and Social Policy (Washington: The Brookings Institution, 1977);
R. Shep Melnick, Regulation and the Courts: The Case of the Clean Air Act (Washington, D. C.: The Brookings Institution, 1983).
Henry J. Abraham, Justices and Presidents: A Political History of Appointments to the Supreme Court, 2nd edn (New York: Oxford University Press, 1985).
See G. Alan Tarr, ‘Civil Liberties Under State Constitutions,’ The Political Science Teacher 1 (Fall 1988): 8–9.
G. Alan Tarr and Mary Cornelia Porter, State Supreme Courts in State and Nation (New Haven, Conn.: Yale University Press, 1988).
Mark Trumbull, ‘School-Funding Equity Emerges As Key State Constitutional Issue,’ The Christian Science Monitor, 27 April 1990, pp. 1, 2.
Roger C. Cramton, ‘Judicial Law-making and Administration,’ Public Administration Review 36 (September-October 1976): 552. Others have concluded that increased judicial activism is related to the decline of ‘consensus politics,’ an important social factor contributing to increased resort to the courts.
Guy Paul Land, ‘Judicial Process and the Decline of Twentieth-Century American Liberalism,’ Harvard Journal of Legislation 16 (Spring 1979): 283–300.
Morris Fiorina, Congress: Keystone of the Washington Establishment, 2nd edn (New Haven, CT: Yale University Press, 1989).
George C. Greanias and Duane Windsor, ‘Is Judicial Restraint Possible in an Administrative Society? As Government Grows and Congress Shows a Reluctance to Address Difficult Issues, the Courts Have Been Forced to Assume a New and Dangerous Pose.’ Judicature 64 (April 1981): 400–13.
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© 1991 Kenneth M. Holland
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Holland, K.M. (1991). Judicial Activism in the United States. In: Holland, K.M. (eds) Judicial Activism in Comparative Perspective. Palgrave Macmillan, London. https://doi.org/10.1007/978-1-349-11774-1_2
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