The Roberts court is finding laws unconstitutional and reversing precedent — two measures of activism — no more often than earlier courts.
But since the Constitution is not "a catalogue of answers," as the conservative scholar Alexander Bickel explained in 1962, Justice Thomas's brand of originalism means substituting his personal views of the Constitution for those of earlier courts.
In May, Roy Moore, chief justice of the Alabama Supreme Court, dismissed a lawsuit on educational equity, and the remedy established and upheld by four earlier courts, that aimed to more evenly distribute resources between black and white schools.
Earlier courts, praised for their judicial restraint, upheld state and federal laws declaring slaves to be property, prohibiting women from serving as lawyers and mandating the sterilization of the mentally challenged.
Justice O'Connor was succeeded in 2006 by the more conservative Justice Samuel A. Alito Jr., and the impact of that switch is likely to be felt in new cases in all four of those areas, with the court revisiting and perhaps replacing precedents from earlier courts in all of them.
Earlier courts used a "best interests" standard to determine custody in such cases.
