SELF-CONSCIOUS INTEREST AND THE DEMOCRATIC PROCESS: The Case of Citizens, Regulatory Agencies, and Federal Courts

Federal courts play an increasingly overt role in the American policy process. The implications of this judicial activism have attracted considerable scholarly attention, with recent literature casting doubt on the capacity of courts to be productive in this role. This article draws out some of these concerns as well as posits a few counterpoints.
After raising both sides of the issue, the article focuses on one complex Supreme Court decision, United States v. Students Challenging Regulatory Agency Procedure (SCRAP I, 1973) and its sequel, Aberdeen and Rockfish Railroad v. SCRAP (SCRAP II, 1975), as vehicles for illustrating and evaluating major questions posed by an active judiciary.