“Why We Need More Judicial Activism”

That's the title of this article in which law professor Suzanna Sherry argues that criticisms of "judicial activism" are misguided. If anything, Sherry says, the Supreme Court should override federal and state legislative judgments more often than it does. She notes that the Supreme Court's "universally condemned" decisions more often left legislation standing than struck it down (e.g., Plessy v. Ferguson and Buck v. Bell). Sherry says a decision like Citizens United, which is hated by many political liberals and consumer rights proponents, should be debated on its merits, not on the ground that it involved "judicial activism." For a recent opposing point of view, at least with respect to judicial deference to congressional legislation, see this opinion piece, in which Neal Katyal laments the Supreme Court's recent penchant for overriding Congress's handiwork and notes that in the first 70 years of its existence the Supreme Court struck down only two federal laws as unconstitutional.

Here is the abstract of Sherry's article:

much of a good thing can be bad, and democracy is no exception. In the
United States, the antidote to what the drafters of the Constitution
called “the excess of democracy” is judicial review. Lately, however,
judicial review has come under fire. Many on both sides of the political
aisle accuse the Supreme Court of being overly activist and
insufficiently deferential to the elected representatives of the people.
I argue in this essay that criticizing the Court for its activism is
exactly backwards: We need more judicial activism, not less. Courts
engaging in judicial review are bound to err on one side or the other
from time to time. 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. An examination of both
constitutional theory and our own judicial history shows that too little
activism produces worse consequences than does too much. If we cannot
assure that the judges tread the perfect middle ground (and we cannot),
it is better to have an overly aggressive judiciary than an overly
restrained one.

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