Judging for the People

Democracy, the Supreme Court, and the Constitution

For just about the last half-century, since Earl Warren became chief justice of the U.S. Supreme Court, the American legal academy has pondered something usually referred to as the “legitimacy problem.”  Law-school professors have believed that there is a difficulty inherent in the fact that an unelected, isolated body of nine jurists working in a marble palace in Washington has the power to dictate what rules will govern our country.  There have been occasions throughout our constitutional history when the Supreme Court has seemed to depart from what had formerly been understood to be the meaning of the U.S. Constitution—for example, the Dred Scott case (1856), in which the Court decided that a freed black could not be regarded as a “citizen of the United States”; or in Lochner v. New York (1905), in which the Court decided that no state could dictate minimum-wage and maximum-hours laws for its laborers—but never before had there been anything to match the activities of the Warren Court.

Prompted by the new chief justice and his fellow Eisenhower appointee William Brennan (Ike said that he had made only two mistakes as President, and they were both sitting on the Supreme Court), the Court overturned many decades of practices in the states regarding matters of educational policy, criminal procedure, legislative apportionment, and school prayer and Bible reading,...

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