Cover image for The least dangerous branch? : consequences of judicial activism
The least dangerous branch? : consequences of judicial activism
Powers, Stephen, 1961-
Personal Author:
Publication Information:
Westport, Conn. : Praeger, [2002]

Physical Description:
221 pages ; 25 cm
General Note:
"Under the auspices of the Center for the Study of Social and Political Change, Smith College."
Reading Level:
1530 Lexile.
Corporate Subject:

Format :


Call Number
Material Type
Home Location
Item Holds
KF5130 .P69 2002 Adult Non-Fiction Central Closed Stacks

On Order



Is the American judiciary still the least dangerous branch, as Alexander Hamilton and legal scholar Alexander Bickel characterized it? Unlike legislatures or administrative agencies, courts do not make policy so much as direct and redirect policy as it is implemented. The judicial contribution to policymaking involves the infusion of constitutional rights into the realm of public policy, and as the government has grown, the courts have become more powerful from doing more and more of this. Powers and Rothman explore the impact of the federal courts, providing a brief account of the development of constitutional law and an overview of the judiciary's impact in six controversial areas of public policy.


-Affirmative action

-Prison reform

-Mental health reform

-Procedural reforms in law enforcement

-Electoral redistricting

In each of these areas, the authors review significant cases that bear on the particular policy, exploring the social science evidence to assess the impact of the courts on policies--and the consequences of that intervention. Powers and Rothman conclude that judicial intervention in public policy has often brought about undesirable consequences, sometimes even for the intended beneficiaries of government intervention.

Author Notes

Stephen P. Powers is a Research Associate at the Center for the Study of Social and Political Change, Smith College.

Reviews 1

Choice Review

This is a diatribe against liberal judicial activism, of which the authors severely disapprove. They survey five well-known legal arenas in which the federal judiciary has intervened and had a substantial effect on public policy: prison litigation, mental health reform, criminal procedure, school busing, and affirmative action. The authors are critical of this intervention because it has not produced beneficial results and because they believe it is improper for an unelected judiciary to stray beyond the traditional judicial role into these political waters. There is little effort to analyze the components or styles of judicial activism and no recognition that it is not exclusively a liberal phenomenon. The unrivaled activism of the present Rehnquist Court, however, belies any notion that activism is exclusively a liberal "vice"--or that it is a vice at all. The authors show that some "activist" decisions did not produce universally positive results. Court decisions certainly contribute to public policy making and implementation, but there is rarely a one-to-one cause and effect relationship. "Judicial activism" is now mostly an epithet, but it is how courts would operate, or survive, if not totally encased in the "passive virtues" that Alexander Bickel once extolled and the authors accept more or less uncritically. ^BSumming Up: Recommended. General readers and lower-division undergraduates and above. J. B. Grossman Johns Hopkins University

Table of Contents

Prefacep. ix
Introduction Hamilton, Bickel, Democracy, and the Courtsp. 1
Chapter 1 Hamilton's Wager and the Rise of Judicial Activismp. 13
Chapter 2 Brown, Busing, and the Consequences of Desegregationp. 37
Chapter 3 Affirmative Action and the Consequences of Racial Preferencep. 59
Chapter 4 Prisoners' Rights and the Consequences of Correctional Reformp. 89
Chapter 5 Mental Health and the Consequences of Deinstitutionalizationp. 113
Chapter 6 The Courts and Criminal Procedurep. 137
Chapter 7 Courts, Voting Rights, and the Consequences of Racial Redistrictingp. 157
Casesp. 189
Bibliographyp. 193
Indexp. 215
About the Authorsp. 222