![]() And when it did invalidate democratically enacted laws, it often did so in the name of democracy-when a state legislature was unfairly apportioned, for instance. But it rarely struck down acts of Congress. The Warren Court tended to invalidate the actions of an individual police officer, a town department, a school board, a county commission, or a state legislature. The Rehnquist Court does this all the time. ![]() The Warren Court, which sat from 1953 to 1969, almost never overruled acts of Congress, especially not civil rights laws. There are times when Congress oversteps and needs to be checked by the courts.Ĭontrast the Rehnquist Court's activism with the Warren Court's activism. If an opinion qualifies as activist according to those three criteria, the chances are that's bad activism as opposed to good activism-which, we should say, does exist. Are you acting in an incremental, evolutionary fashion, with regard to previous cases decided on similar facts? No prior case comes close to what the Court said and did in Bush v. A third dimension of activism involves precedent. Gore is activist along this dimension, too. A second kind of activism involves the Constitution-are you really following the rules laid down in the document? The Constitution says that when you have a presidential election with possible irregularities, the judge is supposed to be Congress. There is also disrespect of prior state law, notwithstanding all of this Court's rhetoric about federalism and states' rights. Gore qualifies because it snatched the power to decide the election away from not only the Florida courts but also the Florida legislature and Congress. One involves the Court's exerting too much power over a democratically accountable body. There are different dimensions of activism. People throw it around basically to attack any decision they don't like. ![]() These are all forms of judicial arrogance that I think can be summarized by an overused term: activism. When a majority of the justices come together across ideological lines, that typically minimizes the negative impact of a tough decision. Board of Education did, when the Court achieved unanimity? No, it does not. Here's another test: Does this decision rise above partisan political alignment on the key issue-the way, say, Brown v. Or, in their words: "Our consideration is limited to the present circumstances because the problem of equal protection in election processes generally presents many complexities." Would the Court itself follow its own precepts in the next case? The Court, in fact, announces in advance that it will not. There are other qualities that elevate this decision to the anticanon. Ask this question: Would these justices have reached the same result if it had led to the other candidate winning? Most people would say the answer is no. For example, the opinion provides absolutely no intellectual justification for the result-that's especially significant since the decision determined a presidential election. It has some of the leading indicators of a really bad decision. Perhaps most important, it reminds us that the Court, for all our lofty talk about "the noble justices" and "the highest court in the land," can be decidedly earthbound in its thinking. And it lays out a set of criteria for spotting bad Supreme Court decisions in the future. It casts the Rehnquist Court in a new-and not very flattering-light. It reveals how the Court works best by examining the times when it fails worst. It is a quick-stop tour of the past two centuries of Supreme Court thinking. Their discussion is much more than a simple "worst of" rant. Specifically, we asked them to name the worst Supreme Court decisions in history-and to show their reasoning.Īmar, the Southmayd professor of law at Yale University Law School, and Lazarus, a former law clerk for Justice Harry Blackmun and the author of Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court, are known not just for their extensive knowledge of the nation's highest court but also for their unvarnished candor about it. One year later, as the anniversary of the infamous presidential election decision approaches, JD Jungle invited two of the country's leading legal thinkers-Akhil Amar and Edward Lazarus-to wrestle with those questions. Double the above values on mobile, where viewports are smaller Set timer to refresh slot every 60 seconds this function refreshes ad slot every 60 second and makes prebid bid on it every 60 seconds
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