Judicial Activism in the First Decade of the Roberts Court: Six Activism Measures Applied

43 Pages Posted: 3 Aug 2017 Last revised: 23 Feb 2019

Date Written: Jan. 5, 2919


Political maneuvering and public controversy surrounding the choice of replacements for Justices Antonin Scalia and Anthony Kennedy highlights the flawed selection and retention practices for the United States Supreme Court. Those practices are linked to the Court’s role as an activist law-making institution. I examine here the activism record in the first decade of the Roberts Court by analyzing seven key cases in which ideological voting blocks were evident. Activism is measured by six content-neutral measures, most of them frequently invoked by the Court itself. The six standards, taken as a whole, are a salient measure of objectionable judicial activism. The Roberts Court, like past activist Courts, was active in an identifiable ideological direction. Its activism may also be distinguished in its aggressive use of agenda manipulation, in its use of policy super precedents, and in ignoring or discounting the views of elected representatives at the local, state, or federal levels. Judicial activism can never be eliminated from a court that is an essential part of the governing process. To lessen its frequency and intensity, structural reforms of the Court are required, including an end to total Court control over its docket, constraints on the Court’s use of policy super precedents, and changes in the appointment process that would create regular turnover in the Court’s membership.

Keywords: Supreme Court, Supreme Court Reform, Judicial Activism

JEL Classification: K19

Suggested Citation

Grimes, Warren S., Judicial Activism in the First Decade of the Roberts Court: Six Activism Measures Applied (Jan. 5, 2919). 48 Southwestern L. Rev. 37 (2019), Available at SSRN: https://ssrn.com/abstract=3012339 or http://dx.doi.org/10.2139/ssrn.3012339

Warren S. Grimes (Contact Author)

Southwestern Law School ( email )

3050 Wilshire Blvd.
Los Angeles, CA 90010
United States

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