To the surprise of the legal left, the Rehnquist Court has refused to overturn Roe v. Wade and has broken new ground in protecting the civil rights of homosexuals. It has endorsed some forms of affirmative action. In last Spring's highly charged enemy detainee cases, it refused to write the executive branch a blank check for wartime detention powers. And even in its hypertechnical (and therefore less controversial) federalism cases, which concern the powers of Congress over the states, the Court has feasted less aggressively on Congress' legislative authority than might have been anticipated, contenting itself to snack on bits and pieces. In retrospect, liberal anxieties about how far this Court would go in implementing the Reagan revolution are looking somewhat misplaced if not, on occasion, hysterical.
So how did the Court arrive at such a sane and centrist position? In The Most Activist Supreme Court in History (University of Chicago Press, 2004), political scientist Thomas Keck gives credit to a practice that has long been the rhetorical whipping boy of the legal right: judicial activism. And, in particular, he credits the bipartisan activism practiced by the Court's powerful swing justice, Sandra Day O'Connor. To find Keck's analysis useful, you don't have to accept his conclusion that the Rehnquist Court is in fact the most activist Court in history. You do, however, have to accept some of his premises about what makes for an activist Court. Keck sees Supreme Court activism as having three separate prongs, linked by a fundamental disdain for Congress. The first is a tendency to invalidate statutes in impressive numbers, disregarding Justice Oliver Wendell Holmes's admonition that nonelected judges should give great deference to democratically elected legislatures. The second is the extent to which the Court asserts its supremacy by declaring that it alone may interpret the Constitution even where the Constitution appears to give other branches of government the right to share this authority. And the third indicator, argues Keck, is the willingness to wander into so-called political thickets messy cases with no clear right answer and big-time political implications.
