Article:

Stephen F. Smith, Activism as Restraint: Lessons from Criminal Procedure, 80 TEXAS L. REV. 1057 (2002).

Abstract:

In Activism as Restraint, Professor Smith analyzes the Supreme Court’s historical approaches to criminal procedure questions—specifically those of the Warren and Burger Courts—and advances a limited defense of the judicial activism that has characterized the work of the Burger and Rehnquist Courts in response to the decisions of the Warren Court before them. Smith argues that courts, specifically during the Warren era, have ignored the plain language of the Constitution in handing down decisions which instead reflected what was, at the time, considered to be good policy.  In response to this mangling of constitutional criminal procedure jurisprudence, courts during the Burger and Rehnquist eras mounted a counterrevolution which, though activist, helped move constitutional criminal procedure jurisprudence closer to a desirable equilibrium.