Judicial Activism

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Dr. Kermit Roosevelt
Professor of Law
University of Pennsylvania

• Researches and teaches constitutional law and conflict of laws.
• Former clerk to Supreme Court Justice David Souter
• Author of “The Myth of Judicial Activism: Making Sense of Supreme
Court Decisions”

“Judge Sotomayor was initially put on the bench by a Republican president, the first President Bush. You’d think she’s pretty moderate. The fact that the line of attack is this ‘activist’ label, I think suggests that it’s really an all-purpose term of abuse.
“In the era of the Earl Warren Supreme Court of the 1950s and 1960s, you had a Supreme Court that was very willing to stand up to Congress. It was willing to stand up to the states when it thought it was doing something wrong, and you did have a very aggressive exercise in judicial power. The court was willing to say, ‘We believe these are constitutional principles that need protection and we’re willing to stand up for them.’ So, to that extent, that people still think that the court we have is the Warren court, it’s natural that the judicial activism charge is going to stick more to the liberals that to the conservatives. We don’t have the Warren court anymore. What we have now is a pretty conservative Supreme Court. Since the conservatives are in the majority, they’re the ones who have the greater chance to push their own agenda.”