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Abstract

Since the days of the Warren Court, conservatives have attacked “judicial activism.” Beginning with Judge Robert Bork’s Supreme Court nomination hearings, and lately with increasing frequency, liberals have sought to turn the tables. Critics now charge that conservative judges are activists, especially when they undermine liberal precedents or strike down liberal legislation. Defenders of judicial activism have all but disappeared. One sign of this apparent consensus is that all Supreme Court nominees now promise to be paragons of judicial restraint.

Some politicians and commentators have suggested that nominees are dissembling when they make such statements, and some of the sitting Justices have been accused of repudiating positions they took when seeking Senate confirmation. Usually, these charges are made by conservatives against liberals or by liberals against conservatives. Disinterested observers are likely to recognize that generalized professions of modesty and restraint by judicial nominees are carefully designed to say next to nothing of any substance. At most, nominees now seem to promise that they will exhibit a certain style in their future work. And that promise they generally do keep. The current members of the Supreme Court pretty consistently present their positions as manifestations of judicial restraint and frequently accuse their colleagues of violating this cardinal judicial virtue. Perhaps “judicial activism” just describes any decision with which the speaker very strongly disagrees. Before accepting this conclusion, perhaps we should consider the possibility that there are analytically distinguishable forms of judicial restraint to which different Justices adhere. Academic commentators have articulated and defended various theories of judicial restraint, but my purpose here is to examine the debate “at work,” so to speak, in an actual case.

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