Judicial Activism Switching Sides?:
In a decision handed down today, United States v. Goddard, two judges who are each on the short-list for a future Supreme Court nomination of their respective parties came down on opposite sides of a Fourth Amendment case. How they lined up is pretty interesting.
The first judge wrote a short concurrence noting that the court was bound by Supreme Court and circuit precedent, and thus had little choice but to rule in the government's favor. The second judge dissented, taking issue with decades of caselaw from the Supreme Court and lower courts and urging the rejection of the Supreme Court's test and the substitution of a new, more restrictive test to better protect the rights of minorities from abusive police practices.
The fascinating thing about this? The concurring judge was the Democratic short-lister, David Tatel. The dissenting judge was the Republican short-lister, Janice Rogers Brown.
Thanks to Howard for the link.
The first judge wrote a short concurrence noting that the court was bound by Supreme Court and circuit precedent, and thus had little choice but to rule in the government's favor. The second judge dissented, taking issue with decades of caselaw from the Supreme Court and lower courts and urging the rejection of the Supreme Court's test and the substitution of a new, more restrictive test to better protect the rights of minorities from abusive police practices.
The fascinating thing about this? The concurring judge was the Democratic short-lister, David Tatel. The dissenting judge was the Republican short-lister, Janice Rogers Brown.
Thanks to Howard for the link.
The tagging of liberal judges as peculiarly "judicial activists" is conservative propaganda.
Respect for precedent is generally found in greatest strength on the side which benefits from the consequences.
If a well-respected appellate court judge really wants X overruled it might be better, strategically speaking, to "reverse" the higher court's ruling since that is more likely to trigger an appeal. If the SCOTUS doesn't want to revisit X they will GVR it without comment. This strategy, of course, must be used sparingly.
Prof. Kerr is consistently evenhanded on these issues, and I'm confident he was just being cute. The allusion is to the fact that liberal judges are generally the ones accused of judicial activism.
I wonder about the inclusion of "switching sides" in your post's title. That implies that only "democratic/liberal" judges are guilty of judicial activism, whereas "republican/conservative" judges are not. Assuming there is such a thing as judicial activism, your post seems to only recognize one, narrow form of it - lower court judges unwilling to be bound by controllnig precedent. Are you really suggesting that only "democratic/liberal" judges are guilty of such actions?
Not knowing the interworkings of the D.C. Circuit, it seems one of three things occuredL Judge Ginsburg wrote the opinion but prefered not to be credited as the "author;" Judge Tatel wrote the opinion, and he concurred with his own work to counter Judge Brown's dissent; 3) Some staff attorney wrote the opinion that Judges Ginsburg and Tatel signed off on.
Btw, my take of Judge Brown's dissent was that she did not think being black in a black neighborhood was, in itself, reasonable suspicion given the imprecise description of the person being looked for. I am not sure I necessarily agree with her, but given that the district judge found the issue to be a "close call," it hardly seems like judicial activism to decide that the district court's "close call" was wrong.
Brown's dissent certainly looks like what we would expect of a more liberal justice and its perspective is activist. It questions precedent, would strengthen the judiciary, would invalidate actions of the executive, and seems to be a bit result-oriented.
At the time of Brown v Board of Education (and certainly by Brown II), I don't think anyone disputed that it was an activist decision. But that did not mean it was a wrong decision.
"Targeted police investigation activates the Fourth Amendment." What?
That's wrong on two levels. Conceptually, it is error because 4A is better thought of as always present at the site of state action, but not always relevant. Practically, it is error because it is demonstrably false. There are all sorts of targeted police investigative activities that do not implicate 4A.
Judge Brown may be on the correct side of this case, but I am underwhelmed by her reasoning.
Then you agree the word is nothing more than a political football that adds nothing of value to the conversation.
Each side in the debate makes it clear that they disagree with the decisions and reasoning of opinions they dislike. Saying the judge didn't properly interpret the constitution is just what it is to criticize a constitutional opinion. The whole role of the term 'judicial activism' is to suggest that the judge is doing something wrong over and above merely having a different interpretation than the one you favor.
In other words if by definition judicial activism is just interpreting the constitution inaccurately then accusing someone of judicial activism says nothing more than you disagree with their decisions.
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Of course it was possible that we meant something useful by judicial activism. Namely that whatever you might believe is the correct theoretical interpretation of the constitution the judicial system demands a certain respect for precedent and judicial activism is the disregard for this precedent. That would be a useful notion but it is unfortunately not the one which judicial activism has come to mean exactly because of responses like this one. If the standard won't criticize judges when they ignore bad precedent we end up with a rule that's no more useful than, 'don't make bad decisions.'
That works if you're on the Supreme Court. Lower-court judges, like Brown, are bound by precedent. They can distinguish it, or try to, but they can't reject it.
That is all.
Ranting in a dissent is not the same as judicial activism while in the majority, of course. I take it more as a brief for a future case.
JB has probably seen her opening to get a SCT spot come and go, and now she wants to help form law.
Blacks being oppressed by the criminal system remains a problem - especially, in my view, the voting rights lost.
I wrote an essay about judicial activism in 2003 that still more or less represents my view. You can read it here.
Ah, but what if the fact that you think the precedent erred is really just due to your personal preference? Rare is the consciously activist justice -- they just happen to think that lots of ideologically contrary rulings are wrong as a matter of law. Coincidentally, mostly those that are ideologically contrary.
The Supreme Court doesn't exist in a vacuum, we've seen plenty of cases over the years when SC dissents eventually become the majority view. I'm no legal historian but I'm sure there are at least a few instances where District Court dissents have trickled up to the SC to eventually become a majority view. I agree with you that for the most part Judges should follow precedent, but there are cases where the conscience should come first.
I'm a tough law and order guy, but in this case where someone was just stopped on the street (Goddard was over 6' so he did not match even the sketchy discription of the suspect) and told to "stop". With 4 armed officers advancing toward him, he obviously felt he had two choices: incriminate himself by telling them he had a gun, or risk getting shot. It does say that Goddard was a convicted felon, so if he was still on parole or probation, I'd have a different opinion.
It also seems to my untrained eye that she isn't actually arguing to overturn the precedents cited by Tatel and Ginsburg. Tatel quotes Brown:
I think "trend" is important here. Tatel sees Goddard as within the set of circumstances in the precedents, Brown argues that it isn't, agreeing with the District Court. She pretty clearly argues that Goddard extends the trend beyond its previous limits, encompassing more of the inherent fuzziness of various situations on the admissible side of the line. Sure, she may not like the previous limits, but I don't think that her dissent requires overturning anything...at least in her view.
This seems like a place where Eugene's "slippery slope" expertise would be interesting to hear.
I disagree with you there, you can't read Roe v. Wade for instance, with Blackmum enshrining trimesters into the constitution and have any doubt that he was deliberately writing his policy preference into the constitution. Miranda and its decendents are another example, look at the wordsmithing over the warning that the courts have indulged in. However other cases such as Griswald v. Conn, not so much. I think the vast majority of Judicial Activism is due to those Judges' sincere belief that their primary mission is to fight injustice, not apply the law. They know what they are doing, they think that is what their job is.
Brown held a state statutory scheme providing for segregated schools unConstitutional. Lawrence held a statute providing for criminal punishment of certain homosexual acts unConstitutional. The first decision overruled Plessy, and the second overruled Bowers. Decisions like Miranda, or Roe v. Wade, which require just making stuff up (a magic police incantation or the stuff about trimesters) seem so obviously legislative that I cannot defend them.
In this case, I don't see any JA in the dissent, because the Congress or state legislature has apparently not made a judgment as to proper police procedure. The political branches have left this area up to case-by-case judicial management, which I see no problem with. I also happen to agree with the dissent. This defendant faced the practical choice of "confess or get shot." Strikes me as compelled self-incrimination.
You can say that, but it's kind of a stretch. To say that Blackmun in Roe was "applying the law" and not writing his preferences into the decision. Especially given all the testimony from the time. Though I gather at the time his preferences were pro-doctor and only later became so strongly pro-woman. Likewise it's kind of hard to find the requirement for the precisely worded Miranda warnings in "applying the law."
/carry on
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I too like Kerr's definition, especially this part:
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Oh and Simon, Kelo came about due to the "liberal" judges. The "conservative" judges were against it, I believe.
How did Kelo vindicate you in light of the fact that it was the liberal judges who found the taking from one private person solely to benefit another private person was constitutional?
This is how Supreme Court majorities are formed all the time. Absolutely nothing liberal or conservative, or activist, about tailoring your opinion to attract the votes of other justices; it's the normal process.
How did Kelo vindicate you in light of the fact that it was the liberal judges who found the taking from one private person solely to benefit another private person was constitutional?
Because it was the conservative judges who wanted to overturn several decades' worth of precedent, and make the federal courts into overseers of state and local decisions concerning land use. Oh, and "taking from one private person solely to benefit another private person" is just a false characterization of the case, which grows no more true with repetition.
I'd expect that you would want to regulate Big Pharma, but to say that turning land over to Pfizer for waterfront office building is either a incredibly tortuous definition of "public use", or you construe this clause:
to mean that appropriation for non-public use does not require just compensation.
If by judicial activism you mean a willingness to reverse precedent, then many judges, liberal and conservative, are that. But overwhelmingly the term is a conservative critique of modern liberal judicial philosophy.
What's amusing is that liberals have failed to grasp that by shunning the label, and even going so far as to try and hurl it back at conservatives, they implicitly cede the argument. They should be consistently attacking conservatives as hidebound atavists and sticking with the notion that the Constitution is an outdated artifact drafted by dead white racists.
That said, there is a tradition of conservative judicial activism that is not consistent with originalism. It wouldn't be relevant today except for the fact that it's Judge Brown (the jurist I would most like to meet) at issue, who endorses a liberty of contract right in the Due Process Clause. But that's what will keep her off the High Court, as someone has pointed out above. There is no conservative consensus for activism as an interpretive philosophy, quite the contrary.
"nor shall private property be taken for public use, without just compensation."
to mean that appropriation for non-public use does not require just compensation.
Actually, you don't have to read the 5th Amendment as endorsing the taking of private property for non-public use without compensation, you just have to read it as being silent on the subject, which it is. Furthermore, the Constitution nowhere says private property cannot be taken for a non-public use, in fact it specifically endorses the taking of private property, provided doing so is in accordance with due process of law. I'm not saying that's a correct result, but it's not obviously absurd on the face of the text either.
The number of laws that are "plainly unconstitutional" is vanishingly small. In theory, an extremely "non-activist" Supreme Court could simply accept the legislature's arguments for the constitutionality of every single law passed. After all, those arguments apparently convinced a majority of the legislature.
In practice, of course, the Court is not about to give up all its judicial review powers that way. But it's still free to exercise those powers with extreme care and reluctance, or with wild and enthusiastic abandon. That is, it can be "activist" to a greater or lesser degree.
How did Kelo vindicate you in light of the fact that it was the liberal judges who found the taking from one private person solely to benefit another private person was constitutional?
An obvious, natural and non-activist reading of the "takings" clause is that it leaves the legitimacy of any given "public use" to legislatures and executives to decide, and simply requires "just compensation" for any such taking. This reading is consistent with the Kelo majority's ruling.
In contrast, many conservatives and libertarians--apparently including the Kelo dissenters on the Supreme Court--apparently would like to see the courts jump in and take responsibility for deciding a pure public policy question: whether the stated purpose for a given taking constitutes a legitimate "public use". And if the courts can decide that "development" is not a legitimate "public use"--pace the legislature--then presumably it can also rule that any other particular "public use" it considers foolish or unfair or statist or otherwise objectionable is therefore not "legitimate", regardless of what laws the legislature chooses to pass. That's what makes it judicial activism.
It is a Roe or Miranda, where the court reaches out to decide more than the case before it and the opinion looks like an attempt to draft legislation, that is activist.
Nick
Interesting--so "activism" is not associated with a large amount (an excess, in its critics' eyes) of "activity"?
Everyone around here has been complaining that "judicial activism" is only used as a euphemism for "rulings I don't like". Well, I've offered a definition--one endorsed by Orin, I might add, although he qualified it as "separation-of-powers" judicial activism--that is clear, coherent, and objective. It also allows for a meaningful, substantive critique of judicial activism, based on its fundamentally anti-democratic nature. Yet here you are, dismissing my definition out of hand as some kind of lexical error. Methinks I'm not the one who's "mixed up" here.
So you think that it is up to the legislature to completely define "public use," a phrase in the text of the Constitution?
Yes, of course. Why do you ask? Are you concerned that the people's democratically elected representatives might settle on a definition that you, or the current Supreme Court justices, or the current Volokh Conspirators, or some other tiny subset of the American public, might not entirely agree with?
There are cases of lower courts disregarding precedent and the supremes ratifying their judgement:
Nichols v. United States, 511 U.S. 738 (1994) overruled Baldasar v. Illinois 446 U.S. 222 (1980)
Casey can be argued to have overruled Akron and Thornburgh (505 U.S. 833, 462 U.S. 416 and 476 U.S. 747 respectively)
An analogy would be, e.g., a law about copyright terms. If Congress passes a law saying that copyrights will last for 20 years, the question of whether that's a legitimate length is a policy question, and thus not appropriate for the courts. If Congress passes that same law, except that it also defines the ownership of lakefront property as a form of copyright that shall last for 20 years, the question of whether laws about real estate are copyright laws at all is a legal question for the courts.
Perhaps we should allow the people's democratically elected reps to define the important words in all our documents to their liking. For instance, Congress could define "speech", as written in the 1A, as pertaining only to words that come out of a person's mouth and the word "press" as only referring to newsprint and books that are literally pressed.
Next, they could define the phrase "giving [the enemies of the US of A] aid and comfort" (one of the elements of treason in Art III) to include any criticism of Congress or Congresspeople. Then, the people's representatives could change the punishment for treason to whipping so long as they redefine the terms "cruel and unusual" to refer only to pain comparable to organ failure of death.
Finally (and most importantly) they could get rid of one of those damn transcendtal numbers!
The words in the Constitution have meanings and, although our understanding of these words changes, they cannot be changed by any assembly, no matter how representative.
If you don't buy that assertion, here's a middle position that we can hopefully agree on: it is highly suspect when any body attempts to redefine terms that restrict its power in such a way as to lessen that restriction. In our example, the takings clause was specifically designed to limit the powers of government taking land and, by redefining "public use", a legislature is effectively granting itself more power.
Similarly, I would not characterize Miranda as a case of judicial activism, because what the Court "just made up" in Miranda was not the existence of the right itself (the right to be free from compelled self-incrimination), but rather the remedy. Creating remedies for legal wrongs is well within the scope of judicial power, and, while the precise words of the Miranda Warning were a purely judicial creation, the right those words were intended to insure came directly from the text of the Fifth Amendment.
Do you think it should thus be up to the legislature to define what constitutes a "search" or "seizure" as in:
If such were the case, both sides in Goddard are judicial activists because they pursue precedentially derived meaning for "seizure".
Some stalwarts like Lino Gralia think there is no place whatsoever for judicial invalidation. Do you align yourself so or are you just willing to accept the cultural ascendency of the unfortuante 'block committee' attitude that permeated land regulation and development in the 20th century — no different in scope than the cultural attitudes that fueled segregation and jim crow — as evidence that property rights don't deserve the same primacy as other rights.
I don't mean this as drippingly conclusive of my understanding of your philosophy so please continue the thread.
For others interested in the case specific circumstances of Goddard, the timing of the stop remains the critical element of debate. I can't imagine that the district courts finding of reasonable suspicion ought to stand, from the D.C. circuit decision:
Thus what makes black coats and blue jeans any different than being black as a reason for suspicion?
No. Miranda defined the right. The Miranda holding (that a cutodial statement is coercive unless certain advisements are given) redefined "compelled". The exclusionary rule is a remedy, but Miranda is a redefinition of a right.
Miranda is an interesting example because it worked. It drew a bright-line rule where a more realistic definition would have been a very complex, case-by-case, examination. Everyone involved understands the rule and both prosecutors and defense attorneys are pretty comfortable with it.
I am confused how there can be a per curiam opinion with a dissent, that's sorta odd. I don't think I've ever seen that before from a 3 judge panel. If it's from the court, it's not from the court if there is a member of the court from which it's not from. Per curiam doesn't mean "from 2/3 of the court."
Well, if it's not a "public use", then the "takings" clause, which deals with the taking of property for "public use", has nothing at all to say about it. Right?
Perhaps we should allow the people's democratically elected reps to define the important words in all our documents to their liking. For instance, Congress could define "speech", as written in the 1A
I expect they'd be hard-pressed to do worse than the Supreme Court, which has defined it to include, for example, hard-core pornography and flag-burning, but not political advertisements.
Some stalwarts like Lino Gralia think there is no place whatsoever for judicial invalidation. Do you align yourself so
Not entirely, but pretty nearly. I'm not necessarily averse to the courts playing various roles in the protection of democracy, such as that played by constitutional monarchs in some countries (invalidating blatant violations of democratic procedures) or by non-partisan election commissions (ensuring that elections are run freely and fairly).
In practice, however, the Supreme Court has almost never acted in defense of democracy, as opposed to expansion of its own power or imposition of its own public policy preferences.
you appear to be a man of principle. but the faults you imagine in the courts are not cured by placing an identically arbitrary and unrestrained power in the legislature on the basis that it is democratically elected.
I do notice that the cases you didn't respond to are those of slavery and jim crow as institutions. Should Dred Scott have been decided the other way based on a human rights standard invoked by the court, i.e. that people were not chattel, the possession of which could be appropriately addressed as property?
I'm not saying that is an easy or obvious question given the context, but what if the same question were raised today.
The point of this thread is that judicial activism - however you define it and whether you believe it attends JRB's dissent in the subject case, which I don't - cuts both ways.
I agree with those who think that the term of art is used as a cudgel against more left leaning implementation, but that is the art of politics at work. That is why we, meaning the royal we (if the foo s--ts wear it), are 'libertarians', in preference to 'liberals' in the full sense, in this country.
Vaclav Klaus asked the other day to be called a 'classic liberal', so these linguistic nuances come and go. I think the criticism of judicial excesses on the left appropriate given the environment in which they began but also think it reasoned to acknowledge that there has been a modicum of response to the criticism, including justified charges of hypocrisy to the right.
All this said, the real problem is restraint of power, not the 'Athenian' approach to its exercise. Thus the conception of the founders of branches of government that would contend against one another remains the most insightful approach to governmental structure. Judicial invalidation is debatable as an implicit piece of that structure but has evolved as an important part of the separation of powers. Simply the threat that actions such as those in Kelo could be invalidated at least keeps legislatures in check and reveals that courts - although not SCOTUS in that case but see numerous State Supreme Court decisions trending the other way, are subject to popular whim as are legislatures, given the public sentiment on this subject.
My belief is that a worse threat to the founders' ideal by far is unregulated delegation,see, e.g. Power without Responsibility by David Schoenbrod, a Faustian bargain between the legislature and executive to subvert the explicit constitutional bounds of lawmaking power by giving it to an unelected, tenured technocracy of bureaucrats. I trust, given your sentiments on the judiciary that you hold the fourth branch in even lower regard.
Brian
Finally, one needs to understand judicial restraint, the doctrine that a judge should avoid "legislating from the bench" and should instead strictly apply the text of the Constitution "exactly as written." This approach is very appealing to those who have never read the Constitution. But see, e.g., the 14th Amendment, which requires judges to protect (without any further elaboration) "privileges or immunities of citizenship" and "liberty" and "equal protection"—phrases so open-textured that they make the "apply exactly as written" mandate somewhat unhelpful.
Senators especially like it when a nominee says a judge's role is just to be an "umpire." But broad constitutional phrases are different from sports rules, so a judge would be like an umpire only if the game--instead of having a strike zone and a set number of balls, strikes, and outs--provided instead that "each batter shall have a fair chance to hit the ball" and "each team shall have a reasonably equal opportunity to score runs." Key language of the Constitution is that broad, meaning that men and women appointed to the bench must necessarily exercise judgment. Which is, of course, why they are called judges, and not umpires.
These are in fact great illustrations of my point. The Supreme Court did nothing to end slavery--in fact, to the extent it acted at all, it did so (in Dred Scott) to preserve slavery. It also initially embraced Jim Crow (in Plessy), and never did anything of practical significance to undermine it (Brown having had no significant on-the-ground effect until the democratic branches took action, in the form of the Civil Rights and Voting Rights Acts, to embrace it). In other words, the anti-democratic powers of the courts were never seriously directed towards righting what is widely recognized as the single greatest injustice in American history.
The same is true of many other retrospectively notorious injustices: the internment of the Nisei, the denial of the vote to women, the crushing of the indigenous inhabitants of continental America, and so on. Instead, the Supreme Court has historically busied itself with retrospectively far more controversial causes, such as protecting the employers of child laborers, as well as abortionists, pornographers, and, of course, all manner of criminals (and now terrorists).
It is ever thus with tyrants: their supporters, dissatisfied with messy democracy, are willing to sacrifice their say in government's actions in return for a ruler who "does what needs to be done". And invariably, they end up with neither. To paraphrase Franklin, those who would give up essential democracy to purchase a little temporary justice, deserve neither democracy nor justice.
Thanks for the pointer to a great speech. I would say though that your comment is imbued with the worst kind of presumptuousness I can imagine.
I'm shocked to hear that a jursit respects Epstein, Freidman and Rand and has the temerity to take on Holmes in the case where everyone knows he was right.
For me this was a refreshing cogent intelligent presentation. It may or may not have been inspired by the idea of telling people what they want to here, but even that idea doesn't wash as the Federalist Society always pairs Epstein with a capable opponent on the right.
These opinions simply are not uniformly held on the right or in the Federalist Society and I think their expression represents is one of principle not pandering. Whether one thinks this a practical or widely shared point of view for a 21st century jurist (see, e.g. Orin's post citing Balkin's opinion on Roberts and Alito )is an entirely different question, and arguably a good reason not to share such opinion.
Even if one accepted that you could trace Brown's appointment to the DC circuity to the expression of such views - which actually track quite well with her jurisprudence, I think you can just as likely trace the potential controversy surrounding such views as a factor frustrating her nomination to SCOTUS.
Especially in light of the post on Roberts and Alito I cited, I, for one, will be forever disappointed that Bush didn't nominate her for one of the supreme court slots.
Brian
In my experience, critics of "judicial activism" are generally criticizing rulings they believe fail to respect the constraints of the Constitution--"amendement from the bench." Under this understanding, it is not deviation from whatever happens to be the status quo of the moment that is activist, but deviation from the starting point, the Constitution's original meaning. While one might fairly disagree over what that meaning was, it is entirely consistent for a critic of activism to seek the reversal of such rulings, and such reversal is not itself activism, but simply the undoing of activism past.
Only if one sought a new non-originalist interpretation could one be fairly accused of inconsistency.
sorry, took a hiatus to read "White Shade of Pale". Well worth the trip although the link was supposed to reveal Rogers Brown as some kind of 'house boy' for the Federalist Society.
I admire your consistency as much as I disagree with your philosophy, cf., animal rights thinkers who also oppose abortion.
Of couse I agree with you on what the court did, or more particularly did not do, in Dred Scott. Nor was I suggesting that it is contextually obvious the court should have done the opposite, but I think it a reasonable proposition.
I disagree although not in a wholesale manner with your paranthetical representaton regard Brown v. Board :
Firstly, the first Brown decision essentially invalidated local law and executive decisionmaking in the local contexts at issue and by implication in many other localities. Whether this had widespread short term effect on the situation on the ground is irrelevant to the question of judicial invalidation as a jurisprudential tool.
The fact that court rulings, even those involving statuory invalidation could be effectively toothless is the product of the same separation of powers that gives rise to the judicial power to begin with.
As to accomplishing nothing on the ground, that has to be viewed as a matter of time. The second Brown decision that brought about direct management of these affairs by the courts is a gross overreach and this pattern was followed in city after city. In my youth which spaned the exact timeframe we are discussing, all I can remember of this issue is not legislative action or executive action, but the busing riots as special masters appointed by the courts became de facto affirmative action officers for school systems.
These court initiated efforts defined desegregation in most places and whether on the pretext of the civil rights act or the Constitution, I think the court is limited to holding members of the executive branch in contempt or empowering other portions of the executive branch, e.g., attorney general,to effectuate stalled or ignored rulings. These circumstances struck me as morally courageous governmental overreach. As a kid I had an intuition regarding the duality implicit in what was going on. As an adult I can name it as judicial overreach, but in the expansive separation of powers violaton, not because judicial invalidation is an invalid tool.
Certainly Brown and its progeny have a cause and effect relationship with the changing political landscape as well. Occasionally one branch will say uncle to another in the separation of powers. And, while I vehemently disagree with the federal power to enforce civil rights against private concerns as all but equally violative of the concept, I would be first in line to support enforcement against the states and their political subdivisions as an implementation of federalism -- which is a two way street vis a vis states rights.
Which gets us back to the thread. All decisions finding federal pre-emption for instance are not a rejection of federalism or representative of conservative judicial activism. The comingling of the police power and the commerce power have hopelessly confused the issue and while it could be sorted out, there is a great devotion of intellectuals to not having that occur. Hence they revile Lochner and worship Filburn. For the life of me, I think only the most ideologically blinded individual could see Lochner as the extreme case of the two.
Janice Rogers Brown swims against that streathis cult of denial for which I'm eternally grateful and she is eternally damned.
Brian