The latest issue of the wonderful legal journal The Green Bag features a micro-symposium centered on Vanderbilt law professor Suzanna Sherry's provocative essay, "Why We Need More Judicial Activism." In short, her argument is that the power of judicial review requires judges to either strike down or uphold democratically-enacted laws, and since judges are "bound to err" one way or the other at various points, "It is much better for the health of our constitutional democracy if they err on the side of activism, striking down too many laws rather than too few."
Pointing to a number of "universally condemned cases," such as Plessy v. Ferguson, where the Court upheld a racially discriminatory state law, and Korematsu v. U.S., where the Court upheld President Roosevelt's wartime internment of Japanese-Americans, Sherry points out that almost all of the worst cases in U.S. history feature "an overly deferential Court [that] failed to invalidate a governmental action." More judicial activism would fix that problem, she argues.
One of the most interesting things about her case is the fact that it's not rooted in any particular theory of the Constitution. There's no appeal here to the original meaning of the text, nor is there any claim that the Constitution is a living document that must change with the times. Her argument is based on history and practice and is openly results-oriented. That's a rare combination in legal discourse, or at least it's rare for the writer to be open about seeking a certain result. And she does make a very significant point: The Supreme Court has indeed been at its historic best when nullifying invasive laws and at its worst when allowing them to stand.
Do we need more judicial activism? Read the micro-symposium and decide for yourself.
Related: "Conservatives v. Libertarians: The debate over judicial activism divides former allies."