The Least Activist Supreme Court in History? The Roberts Court and the Exercise of Judicial Review

Publication Year


Journal Article

Not too many years ago, scholars could reasonably speak of the U.S. Supreme Court as being among the most activist in American history. Both empirical and normative scholarship were driven by the sense of a Court that was aggressive in the assertion of its own supremacy and active in the exercise of the power of judicial review. The Court under Chief Justice John Roberts cannot be viewed in the same way. The Roberts Court has issued its share of controversial constitutional decisions, but a rarely observed but important feature of the Roberts Court is its unusual restraint in the exercise of judicial review. By some measures, in fact, the Roberts Court can thus far be called the least activist Supreme Court in history. This article demonstrates that the Roberts Court is deserving of that title and investigates some features of the exercise of judicial review of the current Court compared to its recent predecessors. In order to illuminate the development of judicial review in the contemporary Court, the article examines a series of snapshots of recent constitutional decisionmaking by the U.S. Supreme Court, comparing illustrative two-year periods of judicial review decisions by the Burger Court, the early Rehnquist Court, the late Rehnquist Court, and the Roberts Court. The article also provides an in-depth examination of the coalition of justices that have characterized the Court's exercise of judicial review and the tendencies of the justices who have served on that Court. During that period, the Court has become less likely to strike down federal laws but importantly it has become far less likely to invalidate state laws. Although the willingness of modern conservative jurists to strike down statutes is notable, the declining ability of the liberals on the Court to form majorities willing to strike down state laws has been particularly important to the creation of a restrained Court. The evidence suggests that the return of judicial activism on the Supreme Court is likely to depend on the appointment of more liberal justices to the Court.

Notre Dame Law Review