ABSTRACT
After William Rehnquist became Chief Justice in 1986 President Reagan had the opportunity to replace Lewis Powell with a more conservative judge, Anthony Kennedy. Bush’s appointment of two conservatives, Souter and Thomas, to replace two liberals, Brennan and Marshall, shifted the balance of the Court even further to the right. Indeed, the 1990-91 term, before Thomas joined the Court, was marked by ‘a surge in conservative activism’ where the Court had policy objectives, particularly in the area of criminal law, and where it was more likely to depart from precedent in its rulings. At times the Court went beyond the questions immediately before it and addressed constitutional issues that dissenters said did not need to be tackled. Some commentators argued that this was precisely the kind of judicial activism for which conservatives used to criticise the Warren and Burger Courts.24
