The Disputed Question: Judicial Activism, Left and Right

Claremont Review of Books, Winter 2006/07.


Professor Michael Uhlmann has given us a devastating indictment of mainstream Supreme Court jurisprudence over the last century, with particular reference to the last half century. He brings under fire the claim of the Court (and its partisans) to supremacy in constitutional interpretation (“The Supreme Court vs. the Constitution of the United States,” Summer 2006). Still more, he brings under fire the Court’s decisions on a wide range of topics, especially in the field of free speech and religion. As a result of those decisions, “pornography runs free while religion is increasingly treated as a toxic presence in the public square.”

“Specifically,” he writes, “the Court has converted the 14th Amendment into a free-roaming license to second-guess state regulations it doesn’t like. It has endowed the Due Process and Equal Protection Clauses of that amendment with new substantive content and applied virtually all of the Bill of Rights against the states….” Uhlmann’s indictment of liberal activist jurisprudence is a lengthy one, but familiar to anyone who in recent years has attended any conclave of conservative jurists, especially those associated with the Federalist Society. Among the aforesaid jurists is law professor Lino Graglia, of the University of Texas, who has often asserted—with much truth-that there have been no victories for conservative principles in the Supreme Court in the last half century or more, and that any so-called victories have been at best only delaying actions in the onward march of liberal judicial activism. Why then, we must ask, with such cogent indictments of Supreme Court jurisprudence as those of Professors Uhlmann and Graglia-not to mention William Rehnquist, Antonin Scalia, and Robert Bork, inter alia-is “our side” always the losing side? According to Uhlmann, Johnathan O’Neill, “in his splendid Originalism in American Law and Politics…[finds that] modern judicial review is ‘rooted in the revolt against formalism,’ a revolt inspired…by philosophical pragmatism, legal positivism, Darwinian theory, and Progressive Reformism.” According to Uhlmann, this revolt captured the mind of the most influential jurist of the 20th century, Oliver Wendell Holmes, Jr.

Claremont Review of Books