The Most Activist Supreme Court in History.

The Most Activist Supreme Court in History Thomas M. Keck University of Chicago Press www.press.uchicago.edu 370 pp., $24

The disclosure in November 2004 that William Rehnquist has thyroid cancer has caused speculation that the end of an era may he near. President Richard Nixon nominated Rehnquist to the Supreme Court in 1971, and President Ron aid Reagan appointed him chief justice in 1986. He is nearing the longest tenure of any justice in U.S. history and has served longer as chief than all but a few who have occupied that post.

Rehnquist has helped move the Supreme Court in a more conservative direction, especially in reviving federalism as a limit on congressional and federal judicial power, limiting the rights of criminal defendants, and allowing substantially more government aid to parochial schools.

Thomas Keck's book traces the history of the Supreme Court since 1937 and seeks to analyze the Rehnquist Court in that context. Keck, a professor of political science at Syracuse University, explores the development of modern constitutional law, beginning with the seismic shifts that occurred in 1937, when the Court changed course and overruled a half century of decisions limiting the ability of government to regulate economic activities.

The first half of the book discusses the Rehnquist Court's predecessors: the New Deal Court, the Vinson Court, the Warren Court, and the Burger Court. Keck concisely describes what occurred in those eras, although little will be new to readers familiar with the Court during this time.

In the latter half of the book, Keck makes a persuasive case for what he calls the "activism" of the Rehnquist Court, explaining that it "has developed a distinctive, post-Warren Court jurisprudence, the most significant feature of which is an utter lack of deference to Congress." He carefully documents the increased frequency with which the Rehnquist Court, as compared with its predecessors, has invalidated federal laws.

Keck focuses on the Court's federalism decisions, which have narrowed the scope of Congress's powers under the Commerce Clause and [section] 5 of the Fourteenth Amendment and expanded the protections of state sovereign immunity. He also presents the Court's Bush v. Gore decision as a stunning example of conservative judicial activism.

The hook is clearly written and accessible to a wide audience. The author draws examples from different areas of constitutional law, touching on many of the Rehnquist Court's major decisions. He acknowledges, especially in the last chapter, Justice Sandra Day O'Connor's pivotal role in determining results in constitutional cases.

Perhaps most important, Keck acknowledges the complexity of the Rehnquist Court's ideology. It certainly has been conservative, as the author argues. in areas such as federalism, criminal procedure, and religion. But the Court also has upheld affirmative action by colleges and universities; continued the ban on prayer in public schools; reaffirmed women's right to abortion; and invalidated laws prohibiting private, consensual homosexual activity.

Keck's book is least persuasive in reconciling these latter decisions with his overall characterization of the Rehnquist Court as "conservative." Also, it is telling--and the author does not make nearly enough of this--that Rehnquist dissented in all of these cases. These decisions seem strong evidence for Keck's assertion in his conclusion that this may be more the O'Connor Court than the Rehnquist Court.

How history will regard the Rehnquist Court is likely to depend on what follows it. If the Court becomes more conservative in the years ahead, as it might if President Bush gets to fill several vacancies in his second term, then it will be regarded as centrist--dramatically conservative in some areas but not others. On the other hand, if the next Court stays the course or even moves to the left, the Rehnquist Court may well be regarded as Keck characterizes it, as embodying judicial conservatism.

Overall, Keck has written an excellent history of constitutional law in the last two-thirds of the 20th century and the first years of the new millennium. Especially as the Rehnquist era may be drawing to a close, the book is worth reading.

ERWIN CHEMERINSKY is the Alston & Bird Professor of Law at Duke University School of Law.