After it became clear at the oral argument the health care mandate law might be in trouble, President Obama suggested that the Justices would be engaging in judicial activism if they overturned the law. This is a particularly high profile example, but charges of judicial activism have been a key part of the discussion of the role of the courts for quite some time, in earlier times from people generally identified as conservatives, but more recently by liberals and progressives. Is there real meaning to the term? Would the term apply to overturning the Affordable Care Act? The Defense of Marriage Act? The three most common ways of understanding judicial activism are that it refers to when judges invalidate legislation, when they do so based on their individual preferences rather than the requirements of the Constitution, and when they overrule a prior precedent. This panel will consider these various possibilities as well as whether the term continues to be a useful one.
Showcase Panel IV: An Examination of Substantive Due Process and Judicial Activism
2:30 p.m. – 4:15 p.m.
- Prof. Steven G. Calabresi, Northwestern University School of Law and Chairman, The Federalist Society
- Hon. Walter E. Dellinger, III, Partner, O’Melveny & Myers LLP, Duke University School of Law and former Acting U.S. Solicitor General
- Prof. Nelson R. Lund, Patrick Henry Professor of Constitutional Law and the Second Amendment, George Mason University School of Law
- Mr. William H. “Chip” Mellor, President and General Counsel, Institute for Justice
- Prof. Mark V. Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School
- Hon. J. Harvie Wilkinson, III, U.S. Court of Appeals, Fourth Circuit
- Moderator: Hon. Edith H. Jones, U.S. Court of Appeals, Fifth Circuit