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The Author examines the Supreme Court’s use of “preferential judicial activism”—whereby justices decide whether to formalistically dismiss cases or instead choose to engage judicial activism based on their policy preferences—through contrasting the Court’s reasoning in Shelby v. Holder with its decisions in cases concerning national security. In Shelby, the majority characterized the Court’s review of the Voting Rights Act of 2006 as necessary given the fundamental rights at stake and the unusually broad reach of the Act in mandating federal jurisdiction over voting matters. However, in national security-related cases in which plaintiffs have alleged violations of fundamental rights, the Court’s response has been a rigid and formalistic refusal to address the plaintiffs’ claims, usually based on the acceptance of government invocations of procedural barriers to litigation. This judicial formalism has consistently led to the dismissal of cases alleging serious government abuse in the post-September 11 context. The Author argues that these instances of judicial formalism illustrate the judiciary’s internal struggle to determine its appropriate role when confronted with questions of constitutional rights during times of war or perceived emergency.

Ultimately, taking this dynamic together with Shelby's preferential judicial activism and its undermining of voter protections for racial minorities, it becomes clear that multiple reforms must be undertaken to protect individual rights. The Author concludes that Congress should better assert its role to protect the civil rights of vulnerable populations through passing additional legislation and that courts must acknowledge their own ongoing preferential judicial activism.

Recommended Citation

Sudha Setty, Symposium: Preferential Judicial Activism, 17 BERKELEY J. AFR.-AM. L. & POL'Y 151 & 7 J. RACE, GENDER & ETHNICITY 151 (2015) (invited symposium submission).