Can the Supreme Court Be Fixed? Lessons from Judicial Activism in First Amendment and Sherman Act Jurisprudence

Abstract:     
The paper addresses judicial activism in Supreme Court decisions. It defines judicial activism as decisions that use statutory or constitutional provisions to reach broad decisions that make it difficult or impossible for democratically elected officials in local, state or federal government to implement a desired policy. It offers six content-neutral tests for measuring judicial activism and applies them to key Supreme Court decisions involving First Amendment election law and the Sherman Antitrust Act. A final section of the paper reviews possible reform options aimed at restoring the Court to a role as a traditional judicial tribunal that decides cases or controversies narrowly. It urges a public discussion aimed at refining and implementing reform.

Number of Pages in PDF File: 32

Keywords: Supreme Court, constitutional law, antitrust law, judicial activism, reforming the Supreme Court

JEL Classification: K21

working papers series