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The Most Activist Supreme Court in History

The Road to Modern Judicial Conservatism

When conservatives took control of the federal judiciary in the 1980s, it was widely assumed that they would reverse the landmark rights-protecting precedents set by the Warren Court and replace them with a broad commitment to judicial restraint. Instead, the Supreme Court under Chief Justice William Rehnquist has reaffirmed most of those liberal decisions while creating its own brand of conservative judicial activism.

Ranging from 1937 to the present, The Most Activist Supreme Court in History traces the legal and political forces that have shaped the modern Court. Thomas M. Keck argues that the tensions within modern conservatism have produced a court that exercises its own power quite actively, on behalf of both liberal and conservative ends. Despite the long-standing conservative commitment to restraint, the justices of the Rehnquist Court have stepped in to settle divisive political conflicts over abortion, affirmative action, gay rights, presidential elections, and much more. Keck focuses in particular on the role of Justices O’Connor and Kennedy, whose deciding votes have shaped this uncharacteristically activist Court.

Read an interview with the author.

370 pages | 11 tables | 6 x 9 | © 2004

Law and Legal Studies: The Constitution and the Courts

Political Science: Judicial Politics



Jeffrey Rosen | New Republic

"A welcome and extremely timely book. . . . Because Professor Keck writes from a political science perspective, his book provides a broader dimension than others which have analyzed the Rehnquist Court in largely legalistic terms. Thus, he shows us how decisions of the Supreme Court are not easily separated from the broader trends of political and social change. . . . If one is looking to understand the relationship between constitutional decision-making and the political and social forces which may influence that process, especially in the immediate aftermath of the 2004 presidential election and with the looming prospect of vacancies on the Court, Professor Keck’s book more than amply fills the bill."

William E. Hellerstein | New York Law Journal

Table of Contents

List of Tables
Introduction: The Supreme Court and Modern Judicial Conservatism
Part I. The Roots of Modern Judicial Conservatism, 1937-1969
1. The New Deal Revolution and the Reconstruction of Constitutional Law, 1937-1949
2. Frankfurter’s Failure: The Rise and Decline of Judicial Self-Restraint, 1949-1962
3. The Warren Court and Its Critics, 1962-1969
Part II: The Court and the Conservative Turn in American Politics, 1969-1994
4. The Nixon Court and the Conservative Turn, 1969-1980
5. The Reagan Court and the Conservative Ascendance, 1980-1994
Part III: The Rehnquist Court and the Splintering of Judicial Conservatism, 1994-2003
6. Activism and Restraint on the Rehnquist Court
7. Law and Politics on the Rehnquist Court
Conclusion: Modern Conservatism and Judicial Power
Cases Cited


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