Supreme Court Decisions

I usually find your timely articles covering the U.S. Supreme Court accurate and insightful. Unfortunately, your front-page headline, “Rehnquist Gavels an End to Era of Judicial Activism,” and accompanying article are somewhat misleading (July 7). The Rehnquist court like its predecessors practices judicial restraint selectively. This means that the court is much more activist than the impression given by your article.

Contrary to reporters David Savage and David Lauter, the judicial activism of the Rehnquist court is not primarily limited to the flag burning and other First Amendment cases. Although the reporters later note that the court has invalidated and limited affirmative action legislation, these conservative actions overturning judgments made by various legislative branches are not discussed as major “exceptions” to what they characterize as a turn away from judicial activism.

The reporters also understate the degree of judicial activism by the Rehnquist court when they treat the Missouri abortion decision (Part I, July 4) as an unambiguous example of judicial restraint. Judicial restraint implies not only respect for the decisions of the state and federal legislative and executive branches, but also respect for precedent, and deference for the findings of lower courts. Seen in this light, the dissenting justices who supported the Roe vs. Wade precedent are no less committed to judicial restraint than the Rehnquist majority which upheld the restrictive state legislation in Webster vs. Reproductive Health Services. Even more to the point, both sides can be accused by critics as practicing judicial activism since the majority in that case was unwilling to defer to the findings of the lower courts which had held the Missouri statues unconstitutional and the dissenting justices were willing to overturn the policy choices of the state legislature.

The reporters’ aversion to ambiguity is reflected by their failure to see that the same evidence they cite to support their argument that the Rehnquist court is moving toward judicial restraint could also have been used to support the conclusion that the court’s behavior this term has been moving in the activist direction of validating conservative principles.

Probably the most accurate label for the court’s behavior this term is political. The court is a political institution and like any other political body does have members who are conscious of the need to generate support for the institution. Because the affirmative action and death penalty decisions by the Rehnquist majority gravely offended liberal court watchers who have a long history of defending this essentially conservative institution, some swing justices apparently felt it was important to give the liberals in the court’s constituency some reason not to totally question the legitimacy of the Rehnquist court. In other words, the “surprising” flag and pornography decisions are probably the result of key shifts by swing justices who hoped to mollify the liberal constituency of the court.

The Rehnquist court has not gaveled down the era of judicial activism; it remains as political as its predecessors.

EDWARD S. MALECKI

Altadena