Yes, It’s an Activist Court

In wisely reaffirming the U.S. Supreme Court’s 1966 Miranda decision Monday, Chief Justice William H. Rehnquist relied on the weight of legal precedent and the fact that the familiar warnings to criminal suspects “have become part of our national culture.” Rehnquist’s opinion for the 7-2 majority was narrowly focused. But by invalidating a 1968 federal law that undercut Miranda, the court once again washed away the distinction made by politicians between conservative judges who merely “uphold the law” and liberal judges who “make law.”

More than once in recent years, close watchers of the court have hoped or feared--depending on their views--that the conservative majority would roll back precedents established by earlier, more liberal majorities. Discontent has centered on prayer in the schools, abortion and the rights of criminal suspects but extended to other issues as well. Conservative critics castigated in particular the Supreme Court led from 1953 to 1969 by Chief Justice Earl Warren for having “made” law in these areas. Jurists with conservative views, the theory goes, generally defer to the will of Congress and more traditional social values. Conservative judges simply review the law brought before them against the requirements of the Constitution.

But the Rehnquist court has proven that task to be more difficult in practice than principle. The current court is unblushingly conservative, but, as Monday’s decision upholding the Miranda warnings illustrates, it’s also surprisingly activist and solicitous of so-called liberal precedents. Last week, for example, the court dashed the hopes of many religious conservatives when it cut down policies adopted by public schools in Texas and Louisiana permitting prayer or religious teaching. Instead, the court more or less toed the bright line separating church and state first drawn by the Warren court.

Many of the decisions also fell on the conservative side. Earlier this term, the court threw out part of a federal law designed to protect women from gender-motivated violence; Congress overstepped its authority under the Constitution’s commerce clause, the court said. That decision followed others in recent years invalidating federal statutes that protected workers and restricted gun possession. With these decisions and others, the Rehnquist court is rewriting decades of jurisprudence on the appropriate reach of Congress’ power to make law. That’s activism by any definition.