Activism as Restraint: Lessons from Criminal Procedure

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.