80 Tex. L. Rev. 1057 (2001-2002)
In this Article, I advance a limited defense of judicial activism by the Burger and Rehnquist Courts in constitutional criminal procedure. My basic claim is that even if the so-called "Counterrevolution" in criminal procedure is viewed as activist -- as I think much of it must be -- it nevertheless was normatively defensible as a necessary condition, in a “second-best” world, of reaching an equilibrium closer to the judicial restraint model than would be possible if activism were only a one-way ratchet. Though my thesis supplies a justification for the Burger and Rehnquist Court's basic approach to legal change, it would be a mistake to conclude that my argument is simply that activism is an acceptable course for conservative Justices. To me, “reactivism” -- activism in response to, and in amelioration of, earlier activism -- would be equally justified as a response by liberal Justices to conservative activism. Even though Republican presidents from the time of Nixon forward have understandably used restraint as a kind of code-word for a conservative judicial philosophy, there is no inherent political bias in the concept of judicial restraint or of reactivism. The Counterrevolution in criminal procedure brings these points sharply into focus.
Stephen F. Smith,
Activism as Restraint: Lessons from Criminal Procedure,
80 Tex. L. Rev. 1057 (2001-2002).
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