“Judicial Activism” Then and Now

Fifty years after the apex of the Warren Court, charges that the Supreme Court is “activist” have resurfaced. Justice Ginsburg has opined that “[i]f it’s measured in terms of readiness to overturn legislation, [the Roberts Court] is one of the most activist courts in history.” Of course, judicial activism may be in the eye of the beholder, and may not be an inherently bad thing. Some who once deplored “judicial activism” now call for “judicial engagement.” Is there any difference between the two? What principles of constitutional interpretation can judges employ that both honor their role in our democracy and avoid their substituting personal policy preferences for legislative decisions? Who have been the beneficiaries of judicial intervention over the last fifty years, when, and why? This panel addressed these questions by examining the Supreme Court’s jurisprudence with regard to equal protection, reproductive rights and the First Amendment.


Walter Dellinger, Partner, Appellate Practice, O’Melveny & Myers
Linda Greenhouse, Joseph Goldstein Lecturer in Law, Yale Law School
Sherrilyn Ifill, President and Director-Counsel, NAACP Legal Defense and Educational Fund, Inc. (LDF)
Clark Neily, Senior Attorney, Institute for Justice
Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor of Law, University of Chicago Law School
Laurence H. Tribe, Carl M. Loeb University Professor, Harvard Law School