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How to judge the Roberts Supreme Court

To ask how activist it was is useless. It's wiser to review why the court was either deferential or assertive.

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With a flurry of 5-to-4 decisions handed down at the end of June, the Supreme Court served notice that things are changing at One First Street.

We should pay attention.

The Court is powerful and important. Its ability to strike down state and federal laws means that it sets the government's boundaries. It also plays a leading role in articulating America's constitutional commitments. It gives substance and definition to the majestic generalities of the Constitution, phrases such as "due process" and "equal protection." In a real sense, the subject of Supreme Court decisions shows who we are as a people, what values we hold dear.

With so much power concentrated in the hands of so few, citizens must be able to evaluate the court's performance.

Activism vs. fidelity is flawed

Conventional wisdom focuses on a distinction between what we could call activism and fidelity. Faithful judges (the good ones) apply the law regardless of their own views. Activist judges (the bad ones) rule based on their own preferences.

This model of activism and fidelity is the one Chief Justice John Roberts invoked in his 2005 confirmation hearings when he promised to be an umpire, not a player.

Unfortunately, it is useless in evaluating decisions because it offers unrealistic caricatures on both sides. True activists don't exist; all judges believe that they are faithfully applying the law. But objective umpires don't exist either, because the Constitution does not provide clear answers in hard cases. That is what makes them hard. Consider some of the most controversial decisions from the just-concluded term.

Does the Constitution's protection of the freedom of speech mean that Congress cannot regulate corporate political advertisements that in effect endorse or oppose particular candidates? Does it mean that school officials cannot regulate off-campus speech by students? Does the guarantee of equal protection mean that school boards cannot take an individual's race into account in assigning students to public schools in order to promote racial integration? And how does the due process clause apply to a ban on partial-birth abortion?

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