Comparing Warren v. Rehnquist Court Activism

[Frank Cross]

I argue there is a fundamental theoretical distinction between Warren
and Rehnquist court activisms.

First, the Warren Court very rarely told Congress it couldn't do something.
It did put up some obstacles, making action more difficult, but did not
make it impossible if the issue were salient enough.  The Court didn't ban
capital punishment, for example, it just made it harder.  The Rehnquist
Court started down this path with its "clear intent" tests but has since gone
further and declared that Congress lacked authority to take any action.

Second, the Warren Court was committed to the rights and interests of
individuals, in a classic liberal sense that at least Hayekian conservatives
ought to take to heart.  Whether one agrees with particular interpretations,
this end seems to be at the heart of the Constitution and the only legitimate
reason to override democratic choice.






Frank Cross
Herbert D. Kelleher Centennial Professor of Business Law
CBA 5.202
University of Texas at Austin
Austin, TX 78712