Judicial ReEngineering

PROPER JUDICIAL ACTIVISM
Greg Jones*
Judicial review, and judicial activism in particular, have never
enjoyed a wealth of popular support in this country. Indeed, the practice
of judges overturning legislative enactments has been the subject of
several sharp critiques over the years, particularly in the area of
constitutional law. As President, Ronald Reagan described the kinds of
judges of which he disapproves as those who love "short-circuiting the
electoral process and disenfranchising the people through judicial
activism." 1 His one-time nominee to the Supreme Court, Robert Bork,
has commented that "[wle have known judicial activism of the right and
of the left; neither is legitimate." 2 Regardless of ideology, it has become a
staple of opponents of a particular judicial decision to accuse the court of
activism, which is synonymous with an affront. 3
Despite its negative connotation, judicial activism, in several forms,
has a long, if not storied, tradition in this country. Since Marbury v.
Madison, 4 striking down legislation passed at the federal and state levels
has been met with varying degrees of acceptance and criticism. It is the
premise of this paper that in constitutional law there is a correct kind of
judicial activism, toward which the Supreme Court should be focused. As
mandated by the Constitution, the proper form of judicial activism is
activism based upon preserving the structure of our constitutional
government. Professor Steven Calabresi comments, "There is nothing in
the U.S. Constitution that should absorb more completely the attention
of the U.S. Supreme Court" than the structures embedded in "[t]hat
great document." s This article aims to demonstrate that a faithful
rendering of the Constitution by the Supreme Court demands
* Law clerk to Chief Justice Roy S. Moore of the Alabama Supreme Court; J.D.,
Regent University School of Law.
1 Ronald Reagan, I PUB. PAPERS 1270, (Oct. 21, 1985).
2 Id. at 41, Jan. 14, 1988. In describing Bork and his "disciples," Professor Harry
Jaffa says they believe "that judicial activism is usurpation, denying to the political
processes of democracy their rightful role in governance." Harry V. Jaffa, Jaffa Replies to
His Critics 235 app. IV-A, at 292 (The Closing of the Conservative Mind) in ORIGINAL
INTENT AND THE FRAMERS OF THE CONSTITUTION (Harry V. Jaffa et al., 1994). In part, that
is exactly the sentiment this paper hopes to refute. Proper judicial activism flows from the
nature of our system, as will be shown, and as such is not usurpation.
3 See David L. Anderson, Note, When Restraint Requires Activism: Partisan
Gerrymandering and the Status Quo Ante, 42 STAN. L. REV. 1549, 1559 (1990).
4 5 U.S. (1 Cranch) 137 (1803).
5 Steven G. Calabresi, "A Government of Limited and Enumerated Powers": In
Defense of United States v. Lopez, 94 MIcH. L. REV. 752, 770 (1995).
HeinOnline -- 14 Regent U. L. Rev. 141 2001-2002