National Law Center of the George Washington University
In the last few years, Court-watchers have been particularly busy critiquing the constitutional decisions of the splintered Rehnquist Court. Two of the recurring critiques have posited that the Justices are overly activist and that their opinions are needlessly confusing. American Lawyer's Stuart Taylor, for example, has decried both the "jurisprudential mess" of the Court's recent redistricting decisions' as well as the disturbing activism that Taylor believes marks each of the Equal Protection decisions of the 1995-96 Terman activism that has led him to wonder "whether there is any life at all left in the idea of judicial restraint."' Eva Rodriguez of the Legal Times is even more critical of the Court's failure to issue opinions that lower courts and lawyers can follow, noting that "the justices have perplexed many court aficionados, who have spent long hours trying to decipher fractured and at times fractious decisions." Likewise, Linda Greenhouse, the influential New York Times writer, has lamented both the activism of the Rehnquist Court and its failure to provide guidance, arguing that the Court has "sometimes spoke[n] in multiple voices so muddled as to be barely comprehensible." Academics and practitioners have joined the fray as well, with noted law professors such as Erwin Chemerinsky and Supreme Court lawyers like Theodore Olson voicing their concerns about the growing activism and divisiveness of the current Court.
Jay D. Wexler,
Defending the Middle Way: Intermediate Scrutiny as Judicial Minimalism
George Washington Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/1629