Essay:The 2007 Supreme Court, or, the Day the Music Died
The idea of the countermajoritarian court - one that defends the minority from the tyranny of the majority - is not new. But it is not that old, either. While the document (the Constitution?) has always been a document of pre-commitment, as in, one that the majority cannot subvert, no longer how large its ranks swell, constitutional values and the law have not always been used to protect those who otherwise would not have a strong voice in the political process. In fact, until the mid-1900s, quite the opposite was true. In the era before the New Deal, a staunchly conservative Supreme Court stuck up for the Big Guy, as in, big business, in preventing labor reforms designed to end child labor and other unhealthy labor practices.
The steady-state Court came to an abrupt end with Earl Warren. Among his first acts as chief justice was the abolition of segregation in Brown v. Board of Education. All of a sudden, the Court became a force for legitimate & steady social change, capable of breaking the cooperation dilemma and failures of the political process that had otherwise obstructed the civil rights movement. The Court went on, during his tenure, to institute other valid and valuable social reforms, and to lead other movements for social change.
In recent years, the Court's leadership in social issues flagged and failed, especially in the area of race relations. While the gay rights movement remains strong, bolstered by gentle yet strong constitutional leadership from the Court, race and other highly relevant constitutional issues have been relegated to a backseat by an increasingly protectionist and retrogressive Supreme Court.
The 2007 Supreme Court term - codified in volumes 550 and 551 of the U.S. Reporter - saw the capitalization and (hopefully) termination of this trend. In a short timespan, the Court has abrogated its role as a force for social change, and turned back the judicial system 20-30+ years. The cases below represent significant back-steps in constitutional history, and will hopefully be undone sooner, rather than later.
Hein v. Freedom from Religion
(Affirmative Action Case)
Boumediene v. Bush
Nor has this failure been limited to the Supreme Court. In fact, the entire federal judiciary has failed recently to step up to the challenges presented by the 21st century.
References, notes, and random snark
- See, e.g., Lochner.