Masking Radicalism With Restraint: The Rhetorical Redefinition of Conservative Jurisprudence in Dobbs v. Jackson Women’s Health Organization

Over the course of a little more than a century, American liberals (or in an earlier period, progressives) and conservatives have switched positions on judicial restraint, judicial review, and the role of the federal courts – not once, but twice. This cycling has multiple causes, including changes in the Supreme Court's docket and partisan strategies for judicial appointments. Behind the composition of the Court's docket and the judicial appointments process, however, is a still deeper cause: the slowly changing structure of national party competition in the United States. Throughout American history national politics has been organized around a series of political regimes in which one party is dominant and sets the basic agenda for political contest. The dominant party also usually has more opportunities to shape the federal judiciary. Eventually the dominant party’s coalition falls apart and a new regime begins, led by a different party. This has happened six times in our nation's history, and we appear to be on the cusp of a seventh transformation. Generational shifts in views about judicial activism and judicial restraint mirror the rise and fall of political regimes led by dominant parties. The kinds of the cases the Justices select, and how the Justices exercise their powers of judicial review, reflect whether we are early in the regime, in its middle years, or in its later days. For this reason, the rise and fall of regimes shapes partisan (and ideological) attitudes about the exercise of judicial review. Early in a regime, the newly dominant party faces opposition from judges appointed by the old regime and obstacles from the constitutional jurisprudence those judges created. Hence its supporters tend to be more skeptical of judicial review. As the dominant party gains control of the courts, however, its followers increasingly recognize the importance of judicial review to promote and protect the party's commitments of ideology and interest. The positions of the two parties are symmetrical: as time goes on, the dominant party relies ever more heavily on judicial review to further its goals, while the other party gradually loses faith in the courts and increasingly preaches judicial restraint--although neither party entirely gives up on using the courts to promote its favored policies. As a political regime moves from its beginning to its conclusion, the positions of the two parties gradually switch, and so too do the views of legal intellectuals associated with the parties. The effect, however, is generational, and not everyone changes sides: older legal intellectuals may cling to their long-held beliefs about judicial review, while younger thinkers adopt a different perspective. Constitutional theories – such as originalism and living constitutionalism – also evolve to reflect changing views about judicial review and judicial restraint. For example, while conservative originalism began as a justification for judicial restraint, it soon evolved to justify strong judicial review; the same thing happened to living constitutionalism earlier in the twentieth century.

Article III of the U.S. Constitution establishes a federal judiciary with powers and functions separate and distinct from the other branches. During its October 2017 Term, the U.S. Supreme Court decided three cases that turned on an interpretation of Article III power: Patchak v. Zinke, Oil States Energy Services v. Greene’s Energy Group, and Gill v. Whitford. This Article argues that in each of those three cases, a majority of the Court coalesced around a unifying principle of judicial restraint. By “judicial restraint,” this Article refers to the principle that the judiciary should respect and defer to the elected branches. In cases interpreting Article III, then, judicial restraint instructs the Court to refrain from asserting its own power and to instead decide in favor of another branch’s power. In Patchak, Oil States, and Gill, despite stark doctrinal differences, the Court refrained from asserting the judiciary’s own power and chose instead to exercise judicial restraint. Such restraint can thus be viewed as a common undercurrent guiding the Court’s Article III jurisprudence. At the same time, simply comparing the Court’s holdings at the case level overlooks important nuances. Even though a judicially restrained holding commanded a majority in all three cases, each of those majorities was differently constituted. To that end, this Article also examines the Justices’ individual approaches to Article III jurisprudence. This examination reveals, perhaps unsurprisingly, that other principles influence certain Justices and that certain Justices, at times, vote inconsistently. Nonetheless, each Justice has, to a greater or lesser extent, embraced the principle of judicial restraint in Article III cases. Even accounting for the Justices’ individual differences, this Article ultimately concludes that holdings consistent with judicial restraint will likely continue to command a majority in Article III cases, at least for the foreseeable future.

Chapter 11 - The Right to Appeal and the Appellate Process

It is helpful to study where the concept of judicial review came from. It has a very English origin that might be worth renewing on both sides of the Atlantic. Judicial review began its statutory life in England only in 1981, and then, in a peculiarly English way, it spoke via delegated legislation, the well-known Order 53 of the Rules of the Supreme Court. All Western liberal democracies, with their commitment to the Rule of Law, are based on similar constitutions, whether they are written or uncodified. The development of an English style of administrative law in the 1960s marked a clear case of judicial creativity. Judicial restraint is one of those familiar phrases that is full of meaning and in practice determines too little substance. It has its place, but needs to be used wisely. It depends on the emanation of the precise sense. Keywords: judicial activism; judicial restraint; judicial review; Rule of Law; Supreme Court

On June 24, 2022, the U.S. Supreme Court decided in Dobbs v. Jackson Women’s Health Organization that the Constitution does not confer a right to abortion, which had been upheld since Roe v. Wade in 1973. Roe, overruled by Dobbs, had represented constitutional revolution led by liberal Justices starting from the Warren Court. Conservative lawyers have tried to put an end to judicial activism since early 1980s. This paper reviews the conservative judicial movement in terms of constitutional interpretation as well as social movement. Originalism, conservative theory of constitutional interpretation based upon the text of the Constitutional and original meaning of the text, has been developed to criticize the Warren and Burger Court’s decisions of making constitutional rights based upon a theory of living constitutionalism. Originalists argue that incorporation of current values is the obligation of the representative, not the job of the court. In Dobbs the Supreme Court delivered an opinion that Roe was egregiously wrong and on a collision course with the Constitution. Six Justices in majority opinion in Dobbs are members of, or otherwise affiliated with the Federalist Society. The Society, which was founded to promote conservative and libertarian beliefs such as limited government and judicial restraint in 1982, has grown to be the most influential legal network. Though the Society is accused of making the Court politicized, what we as foreign scholars should learn from the Society is the intellectual culture that the Society is focusing on. The Society has accumulated intellectual capital by way of reasoned debate and robust discussion.

Despite the oft-mentioned goal of judicial restraint, courts have few effective tools to realize it. Stare decisis provides some guidance on whether legal change should be made where there is relevant precedent, but courts do not always conduct a stare decisis analysis. And for questions for which precedent and thus stare decisis is not relevant, beyond malleable tools, including those of statutory and constitutional interpretation, the courts have no guidance on whether to make legal change. Accordingly, many scholars have argued that judicial restraint is rhetoric not reality. Possibly unsurprisingly then, several recent high profile Supreme Court cases including Twombly, Wal-Mart, and Ricci, have exhibited what may be characterized as a lack of judicial restraint. While to date each case has been criticized for the specific legal change made in the case, an unrecognized lack of restraint ultimately ties all of the cases together. In the cases, the Court made legal change motivated by extraordinary circumstances, and no doctrine of judicial restraint prevented the change. This Article argues for a new doctrine of judicial restraint — the “atypical doctrine” — that the Court should not make legal change in cases, like Twombly, Wal-Mart, and Ricci, where legal change is motivated by oddball or atypical facts, and the change would affect typical cases. The Article contributes to the important question of when the Court should make legal change by beginning a discussion on how judicial restraint can be strengthened.

The doctoral dissertation which follows particularizes the content of a series of analogous legal principles, which in part determine, whether a court in which the tradition of common law adjudication prevails will render a decision in a particular case. These principles include justiciability, standing,mootness, ripeness for review and include what have been compendiously described, in the United States, as of judicial restraint.The interrelation between these principles and common law adjudication is explored by examining the principles, with a view to seeing whether they share a common purpose in affecting the course of adjudication, as the American appellation of judicial suggests. Special reference is made to Australia. The model of common law adjudication against which these issues are canvassed is a modern re-statement of the declaratory theory of law.Amongst the conclusions reached is the expression, of judicial restraint,is misconceived.After evaluating such doctrines, in the direct light of their analysis, and the indirect light of analysis of judicial restraint's antimony, judicial activism, one arrives at the view that both judicial restraint and judicial activism are category errors in law; properly belonging to political analysis, not to legal analysis, except in those circumstances where such errors become part of the legal professional mind-set.Basal to the correct approach is judicial process classically concerns judgment derived from existing rules. Certain of the of judicial fit such a system. Others of them, particularly those associated with Mr. Justice Frankfurter of the Supreme Court of the United States, and further, many extensions of traditional doctrines associated with His Honour, are illegitimate and do not comport with a system founded on judgment, not will.In the result, judicial restraint and judicial activism are bankrupt. Some of the implications of this are spelt out in the conclusion.The methodology involves comparative legal analysis. Any difference in approach to these matters by the High Court of Australia since the ending of appeals to the Queen in Council, and any commonality of purpose between these principles and the doctrine of stare decisis in minimizing the importance of obiter dicta are incidentally noted.This thesis is thematically jurisprudential, with special reference to the Australian milieu. Its centre-piece is the examination of the inter-relation between the principles and adjudication, not the exposition of the law, in itself. However, a detailed exposition of some areas has been undertaken, in order to avoid the pitfalls of inadequately anchored generality. The statement of general propositions is alternated within detailed expiscations of narrow areas with the relevant general proposition.

Many legal scholars believe that judges should not be “activists.” But exactly what does it mean for judges to practice “restraint,” and how did that set of practices evolve in America? This book traces the cultural, social, and intellectual forces that shaped the contours of judicial restraint from the time of John Marshall, through the “vested property rights” courts of the early 20th century, through the Warren Court, and up to the present. The Supreme Court and the many lower federal courts have long used mystifying technical doctrines known as “standing” and “abstention” out of a professed fidelity to judicial restraint. Yet this book aims to demonstrate that the concept of judicial restraint cannot be meaningfully viewed outside of the varying contexts of American history. The notion of judicial restraint only makes sense in light of the waxing and waning American commitments to property rights and Protestant idealism, to scientific pragmatism, to racial equality, and even to environmental protection and the need to stem climate change. This book focuses on the personalities and lives of powerhouse Supreme Court justices — John Marshall, Oliver Wendell Holmes, Louis Brandeis, Felix Frankfurter, William Brennan, and now Antonin Scalia.

Justice Rosalie Abella is closely associated with deference to administrative decision makers. I will argue that her deferential approach was multifaceted, much more sophisticated than might typically be assumed. Abella J’s administrative law jurisprudence is as much about administrative autonomy as it is about judicial deference. On one level, Abella J’s jurisprudence is a jurisprudence of judicial restraint, preaching limited judicial oversight of the administrative process. This reflects the conventional way of thinking about deference in administrative law as a doctrine requiring judicial restraint: it is a shield protecting administrative decision makers from judicial interference. Accordingly, she supported a broad presumption of deference to administrative decision makers and articulated a fairly non-interventionist conception of reasonableness review. But, on a deeper level, Abella J’s jurisprudence is more radical. As I explain, Abella J was not committed simply to a restrained approach to judicial review but, rather, to promoting the autonomy of public administration: she furnished swords to administrative decision makers, allowing them to carve out additional space in which to operate and articulate applied versions of legal norms. Her commitment to administrative autonomy, rather than simply to judicial restraint, prompts reflection about the basis of Abella J’s administrative law philosophy, which must ultimately be grounded in her trust of the administrative process, aligning her with the so-called ‘functionalist’ school of thought associated with progressive thinkers. I then turn to the Supreme Court of Canada’s recent rearticulation of Canadian administrative law in the Vavilov case – a rearticulation with which Abella J expressed firm disagreement. I reflect on why the majority and Abella J diverged in Vavilov and suggest that the key features of Abella J’s jurisprudence – restraint and autonomy – are rooted in a mode of thinking about administrative law that has fallen out of favour.

Stare Decisis and Judicial Restraint Lewis F. Powell, Jr. Editor’s Note: This essay was originally deliv­ eredas theLeslieH.ArpsLecture, to TheAsso­ ciation of the Bar of the City of New York, on October 17, 1989. It was published in the July 1990issueoftheNew YorkStateBarJournaland is reprinted withpermission. ThebeginningofOctoberTerm 1989 marks an appropriate occasion to address again the subject ofstare decisis. At the close ofthe 1988 Term, commentators who agreed on little else unanimously proclaimed a “shift in direction” on the Court. Theydescribed the 1988 Term as a watershed and predicted reexamination of numerous areas ofthe law “previously thought to be settled.” You will not be surprised to learn that I take these pronouncements, like many that have preceded them in past years, with a grain ofsalt. In the era of “sound bites” and instant opinion polls, it is dangerous to apply broad labels to a single Term of the Court. I emphasize at the outset thatinintellect and experience this is a strong Court. The pastTerm presented an arrayofunusu­ allydifficultcases. This inturnresultednot only in five to four decisionsbut in splintered rulings without majority opinions. Unhappily, some opinions—on both sides of issues—included language that in time the authors may regret. I was concerned about the tone of some dissents when I was nominated for the Court in 1971. But I was reassured when it became evident that what one Justice may say about another’s opinion rarely should be viewed as personal criticism. I considered each ofthe Justiceswith whom I was privileged to serve as a personal friend, as well as a lawyer whose qualifications to serve on the high Court I never questioned. Justice Kennedy also has high qualifications. A. Stare Decisis in the 1988 Term Any talk of change at the Supreme Court prompts consideration ofstare decisis. Several of the Court’s opinions in the past Term have contained explicit discussions of stare decisis, both in statutory and constitutional cases. Perhapsthemostsignificant ofthe statutory cases is Patterson v. McLean Credit Union,1 in which the Court reconsidered the decision in Runyon v. McCrary2 that applied42 U.S.C. sec. 1981 to private contracts. The majorityopinion didnot holdthatRunyon was correctlydecided. But the Courtunanimouslyagreedthat, regard­ less of its initial correctness, Runyon should be reaffirmed on stare decisis grounds.3 Justice Kennedy’sCourt opinion reviewed anumber of the Court’s past opinions and stated that ‘“the doctrine of stare decisis is of fundamental im­ portance to the rule of law.’”4 A constitutional case involving stare decisis was South Carolina v. Gathers.5 In Gathers the Court was urged to reconsider Booth v. Maryland,6 an opinion I wrotefortheCourtinmylastTerm. Booth held that the EighthAmendment limits comment in capital sentencing proceedings on attributes of a murder victim and his family that were unre­ lated to the commission of a crime. Justice White, who had dissentedin theBooth case, de­ clined to overrule it. He joined Justice Bren­ nan’s opinionforthe Court inGathers. Thefour dissenters in Gathers explicitly called for overrulingBooth. Justice Scalia discussedstare decisis at length. While he acknowledged “some reservation concerning decisions that have become so embedded iribhr system of govern­ ment that return is no longer possible,” he argued that a Justice must be free to vote to overrule decisions that he or she feels are not 14 JOURNAL 1991 supportedbytheConstitutionitself, asopposed to prior precedents.7 Of course, a new Justice is less bound by precedent in construing a provision of the Constitution than a Justice who was sitting when a precedent was decided. The Court’s decision in Websterv. ReproductiveHealth Serv­ ices,8perhaps more controversial than the “flag burning” case,9 prorides an illustration. Justice Scalia and Justice Kennedy declined to follow Roe v. Wadew in that case. Justice Scalia would have overruled Roe explicitly. Justice Kennedy joined the Chief Justice and Justice White in limiting Roe. The end result was a badly fractured Court withfiveseparate opinions. AsIjoinedRoc and wrotethe Court opinion inAkron CenterforRe­ productiveHealth, Inc.,11 there is no secret as to how I would have voted in Webster. I do not say this as a criticism of the Court. In its long history, the presence on the Court of even a single new member often brings change. B. Current...

The Anglo-American law have a considerable amount of accomplishments, which have become a worldwide asset. In terms of globalization and interaction, to use these achievements would be beneficial for further development of Ukrainian legal system. However, the very philosophy and reasoning behind the precedent-based common law is different from that in the civil law tradition of which the Ukrainian law is a part. This paper is intended to contribute to the examination how the mechanism of Anglo-American law operates in view of the expediency to introduce some of its elements into the Ukrainian jurisdiction. The initial part devoted to the emergence of, and formation of, the common law. It is noted that in the case of common law the influence of Roman law should not be denied. Relying mostly on praetorium ius experience, it has manifested itself in other directions and forms compare to civil law system. Therefore, the both, common law and civil law, despite their differences have been formed on the common ground – the Roman legal tradition. Taking into consideration that throughout their history they exchanged fruitful ideas, there is no irreconcilable, "genetic" incompatibility between them. Thus, it would allow to successfully implant certain common law elements, first of all precedent as a source of law, in the body of Ukrainian law, a part of civil law system. The paper notes that issues of common law mechanism have never been a priority for scholarly research in Ukraine as in a country of civil law tradition. The inertial influence of the Soviet law has also contributed to this situation. According to the communist ideology and the positivist visions on which the Soviet law was based, the precedent has not been considered as an acceptable legal instrument. In order to clarify how the mechanism works, the paper provides an overview of precedent and stare decisis doctrine as key components of common law. While a principle of stare decisis binding courts to follow legal precedents in cases with similar circumstances is in the core of Anglo-American law, in civil law systems precedent is not considered as binding. This discussion is followed by an analysis of judicial lawmaking. The paper specifies that in the common law systems, courts are not absolutely bound by precedents. In terms of radical changes in political, social or legal areas, they are entitled to re-examine and apply the law differently without legislative intervention, to adapt it to new circumstances. Thus, the Anglo-American legal tradition provides much broader scope for judicial lawmaking than Romano-German law. However, there is no consensus on the range to which it should be extended and to which extent it should rely on precedent. Within the framework of this controversial issue judicial activism and judicial restraint, two opposite philosophies of making a ruling in common law, are addressed. In order to examine the multifaceted nature of correlation between stare decisis principle and judicial lawmaking, the latest experience of the Supreme Court of the United States' on overruling precedents is considered. The paper summarizes that, most likely, mixed legal system associated with Nordic countries should be set as the reference point for the movement of Ukraine in this area. Such approach would provide rather broad scope for the operation of the common law elements, while safeguarding its omissions such as unjustified judicial activism.

This introductory chapter considers the constraints faced by Supreme Court justices. It begins by discussing the attitudinal model, which assumes that justices are “decision makers who always vote their unconstrained attitudes.” It then turns to three legal principles that might constrain justices: stare decisis, judicial restraint, and strict construction of the Constitution. Stare decisis is the doctrine that decisions should be consistent with past decisions. Judicial restraint implies that justices should defer to elected officials as much as possible within the bounds established by the Constitution. The remainder of the chapter deals with external constraints followed by an overview of the subsequent chapters.

The article is devoted to the study of a fundamental problem of jurisprudence – the correlation between judicial interpretation and judicial law-making. The relevance of the topic is driven by the necessity to rethink the role of the judge amid the transformation of the national legal system associated with its integration into the European legal space. Through the lens of the transition from the classical positivist paradigm to the doctrine of the rule of law, the role of the court in creating legal reality is explored. The necessity of a shift from a narrow understanding of the court’s role exclusively as the «mouth of the law» (la bouche de la loi) in favor of a model of an active subject of interpretation is substantiated. The thesis is elaborated that judicial interpretation serves as a mechanism for adapting the law to changing social demands. It is proven that judicial interpretation acts not only as a technical means of clarifying the content of a norm but also as an instrument for overcoming legal uncertainty. It is proposed to view this process as a dynamic «discovery» of law, ensuring the stability of the legal system while maintaining its flexibility. The article analyzes existing approaches in legal doctrine to the interpretation of the phenomenon of judicial law-making, which arises at the junction of filling legislative gaps, overcoming conflicts of laws, and resolving exceptional legal problems. Based on the analysis of scholarly approaches, potential risks of excessive judicial law-making and its impact on legal certainty are identified. The dualistic nature of the legal positions of the Supreme Court is revealed, which, despite the lack of official recognition of judicial precedent, are effectively characterized by signs of «soft normativity.» It is established that the legal positions of higher judicial instances do not merely clarify the content of the law but also supplement it, revealing and forming additional stable algorithms of law enforcement. It is argued that the boundary between interpretation and law-making should be determined by the limits of legal certainty, the principle of «judicial restraint,» and the unconditional priority of protecting human rights over the formal legislative text. The vision of judicial law-making is substantiated as an exceptional property of justice, arising when ensuring fundamental human rights and equity outweighs the requirements of the principle of separation of powers. The study was conducted using the methods of philosophical hermeneutics, systemic-structural analysis, and the comparative legal method, which allowed for the analysis of judicial interpretation as a multi-level process. The scientific novelty of the study lies in the combination of the theoretical foundations of legal hermeneutics and the analysis of the current procedural practice of higher judicial instances.

The Vinson Court and the Idol of Restraint Fewjudicial characteristics gamer greater praise than that of judicial self-restraint. Yet the most restrained Court of the twentieth century, that of ChiefJustice Fred M. Vinson, is largely considered a failure. Using the Vinson Court as a historical case study, this article questions the merit ofthisjudicial ideal. I. Judicial restraint is generally contrasted with judicial activism. Indeed, it has become commonplace to criticize the latter while extolling the former.1 Such criticism has come from scholars, politicians, and judges alike.2 Perhaps more notably, the vitriol has come from both the Left and the Right.3 Despite its frequent usage, judicial activism has no clear definition. Some believe it a vacuous phrase, used merely to dismiss decisions one seeks to paint as politically partisan.4 Since judicial decisions are rarely, if ever, transparently political, however, proving such partisanship is far from straightforward. Regardless of what makes an activist judge, the parameters ofjudicial restraint have usually been easier to draw. If activist judges interpret the law as they please, restrained judges are seen as impartially deferring to ZACHARY BARON SHEMTOB other authorities whenever possible. James Bradley Thayer, perhaps judicial self-re­ straint’s most influential advocate, argued that the best judges should avoid nullifying executive and legislative acts unless they are clearly unconstitutional.5 Richard Posner succinctly summarizes judicial self-restraint as a judge’s reluctance to “declare legislative or executive action”6 void, and such deference “at its zenith when action is challenged as unconstitutional.”7 Indeed, while “judicial activism” was originally invoked as a form of judicial abuse,8 praise for a restrained judiciary has existed since our nation’s very founding. Alexander Hamilton warned against judges enshrining their own values into law by overturning legislative or executive prerog­ atives.9 Chief Justice John Marshall was cautious not to nullify legislative enactments, openly decrying the appearance of judicial partisanship.10 Indeed, up until the Dred Scott decision, today largely recognized as “the worst imaginable case ofjudicial activism,”11 the Court only once overruled a federal statute and declared state statutes void a mere handful of times.12 134 JOURNAL OF SUPREME COURT HISTORY With the turn-of-the-century and the Industrial Revolution, the idea of an unre­ strained (and thereby more activist) Court began to grow increasingly prominent.13 Interestingly, although today judicial activ­ ism is widely associated with the Left, this label was first used to denounce conserva­ tive jurists during the Progressive Era. These conservatives—today perhaps better conceived as classical liberals—sought to support property claims and the newly rising industrial elite, and nullified state and legislative statutes through implicit, immutable property rights and a nebulous “freedom of contract.”14 In Baldwin v. Missouri (1930), Oliver Wendell Holmes, Jr., an advocate ofrestraint, complained that his activist brethren’s political support for industry, and its refusal to respect legisla­ tive or executive prerogatives, had “hardly any limit but the sky.” Louis D. Brandeis agreed, chastising the Court for acting as a sort of“super legislature” in New State Ice v. Liebmann (1932), a decision preventing state legislatures from demanding busi­ nesses have licenses in order to sell ice. The Court’s activism reached its peak during President Franklin D. Roosevelt’s first term. The President had been elected on a platform ofeconomic reform, and shortly after taking office attempted to pass a package of sweeping financial measures.15 When the Justices struck a number of these, Roosevelt threatened to retaliate by packing the Court with his own Democratic appointees. Al­ though the President’s plan fizzled, the Court majority became markedly less willing to overturn executive and congressional stat­ utes. 16 When a number of the more conserva­ tive Justices died or retried shortly thereafter, Roosevelt crafted a Court almost entirely loyal to his progressive economic agenda. The resulting Court, led by Chief Justice Harlan F. Stone, soon became splintered between the judicial ideologies of Felix Frankfurter and Hugo L. Black.17 While The author argues that the Vinson Court (pictured in 1953) was perhaps the most restrained of the twentieth century in terms of judicial activism. It had the lowest nullification rate of federal, state, and local...

When the Supreme Court's effectively decided the presidential election of 2000, it decision illustrated a classic question in American politics: what is the appropriate role for the Supreme Court? The dilemma is between judicial activism, the Court's willingness to make significant changes in public policy, and judicial restraint, the Court's willingness to confine the use and extent of its power. While the Framers of the Constitution felt that the judiciary would be the least dangerous branch of government, many have come to the conclusion that courts govern America, a notion at odds with democratic government.Richard Pacelle traces the historical ebb and flow of the Court's role in the critical issues of American politics: slavery, free speech, religion, abortion, and affirmative action. Pacelle examines the arguments for judicial restraint, including that unelected judges making policy runs against democratic principles, and the arguments for judicial activism, including the important role the court has played as a protector of minority rights. Pacelle suggests that there needs to be a balance between judicial activism and restraint in light of the constraints on the institution and its power. Stimulating and sure to generate discussion, The Supreme Court in American Politics is a concise supplemental text for American Government and Judicial Politics course.