Document Type


Publication Date


Publication Information

73 U. Colo. L. Rev. 1337 (2002)


Much of recent discussions of conservative judicial activism has concerned the revival of federalism-based limits on Congress during the Rehnquist Court. The allure of federalism as a topic for discussion is understandable, yet I argue that constitutional criminal procedure provides a better context within which to test the Rehnquist Court's commitment to judicial restraint. In this Essay, I examine the topic at hand against the background of the many important developments that have taken place in criminal procedure on Rehnquist's watch. The results of this examination are surprising because they suggest that activism is not necessarily the antithesis of restraint. That is to say, although the Court has indeed been activist in criminal procedure, its activism may ultimately serve the goal of judicial restraint. If in fact it does, then believers in judicial restraint should embrace rather than condemn the Court's activism.


Symposium: Activism



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.