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.
Stephen F. Smith,
The Rehnquist Court and Criminal Procedure,
73 U. Colo. L. Rev. 1337 (2002).
Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/448