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Judicial activism received a great deal of attention in Elena Kagan’s hearing before the Senate Judiciary Committee, with liberal-leaning members of the Committee lamenting the rightward tilting, pro-business, activist Roberts Court, and conservative-leaning Committee members asking Kagan questions about whether certain of her actions and writings suggested a predisposition to judicial activism. Is the Roberts Court an activist, pro-corporatist court? Do Kagan’s writings on the Second Amendment or her praise for activist Israeli Supreme Court Justice Aharon Barak suggest that she will be a judicial activist, too?
To answer these questions, it is necessary to ask the most basic question: What is judicial activism? Does it occur anytime a law is struck down? Does it happen when judges replace the law with their policy preferences? Or is activism just a meaningless term liberals and conservatives sling at each other? To discuss this timely topic, Jeffrey Rosen, who has contributed to the discussion of judicial activism with publications such as “Supreme Court Inc.” and “Big Business and the Roberts Court,” will debate Heritage’s own Robert Alt, who testified on this topic during Elena Kagan’s hearing.
More About the Speakers
Professor of Law, George Washington University Law School
Senior Legal Fellow, Center for Legal & Judicial Studies, The Heritage Foundation
The Honorable Susan Braden
Judge on the U.S. Court of Federal Claims (Moderator)