This Article analyzes the recent trend of conservative judicial activism in the Supreme Court and searches for a principled reason to explain it. The conservative majority has struck down several laws in recent years, culminating in its invalidation of an important provision of the Bipartisan Campaign Reform Act of 2002 in Citizens United v. Federal Election Commission. While judicial restraint and originalism are currently seen as conservative principles, neither principle explains these decisions. The author argues that no principle can explain the results of these cases—rather, they can only be explained by the Justices’ personal views and policy preferences. The author compares the conservative majority’s pattern to that of the Warren Court, which largely invalidated laws only when footnote four in United States v. Carolene Products Co. would dictate that the Court should. Thus, neither unrestrained judicial activism nor total judicial restraint is appropriate. Instead, the author argues that a selective judicial activism guided by footnote four is the best approach. The author then concludes that the conservative majority is troubling because it is infusing its personal policy preferences into its opinions while at the same time convincing the public that it is acting in a principled manner.
The full text of this David C. Baum Memorial Lecture is available to download as a PDF.