The modernizing mission of judicial review

University of Chicago Law Review

Volumn 76, Issue 2, 2009, Pages 859-907

  Strauss, David A ^a  

^a UNIVERSITY OF CHICAGO   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 69249168427     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (278)

1. People who disagree on practically everything else about how to interpret the Constitution agree on some version of this. See, for example, Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 37-47 (Princeton 1997) (asserting that a constitution's "whole purpose is to prevent change - to embed certain rights in such a manner that future generations cannot readily take them away");
2. Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution 1-12 (Harvard 1996) (suggesting that the courts should look to "the broad story of America's historical record" and there search for a moral meaning underlying certain phrases in the Constitution);
3. Bruce Ackerman, 1 We the People: Foundations 34-162 (Harvard 1991);
4. id at 98 ("Think of the American Republic as a railroad train, with the judges ⋯ sitting in the caboose, looking backward.");
5. Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 27 (Bobbs-Merrill 1962) (noting that the courts are charged with the "creative function of discerning afresh and of articulating and developing impersonal and durable principles" and arguing that the courts are better equipped to handle this task than elected institutions).
6. For a celebrated example of the criticism, see Bickel, The Least Dangerous Branch at 16-23 (cited in note 1) (arguing that judicial review is "counter-majoritarian" and works against the representative bodies by putting power in the hands of judges). For an account of how the criticism became commonplace,
7. see Barry Friedman, The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five, 112 Yale L J 153, 157-62 (2002) (tracking the history of criticism of judicial review from the 1800s through the present).
8. See Adrian Vermeule, Judging under Uncertainty: An Institutional Theory of Legal Interpretation 230-89 (Harvard 2006) (suggesting a modified version of judicial review in which the courts "should enforce the Constitution only where, as the nineteenth-century legal scholar James Bradley Thayer suggested, no reasonable basis for interpretive dispute exists");
9. Jeremy Waldron, The Core of the Case against Judicial Review, 115 Yale L J 1346, 1353, 1369-1406 (2006);
10. Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review, 128-44, 249-53 (Oxford 2004);
11. Mark V. Tushnet, Taking the Constitution away from the Courts, 6-31, 163-72 (Princeton 1999).
12. 347 US 483 (1954).
13. 410 US 113 (1973).
14. See Furman v Georgia, 408 US 238, 291 (1972) (Brennan concurring) (citing to the decline in the imposition of the death penalty since the 1930s and concluding that "[t]he outstanding characteristic of our present practice of punishing criminals by death is the infrequency with which we resort to it").
15. See Gregg v Georgia, 428 US 153, 194-96 (1976) (noting that minimal guidelines on mitigating and aggravating factors were sufficient to overcome the Furman Court's problem with the "freakish" application of the death penalty);
16. Proffltt v Florida, 428 US 242, 252-53 (1976) (holding that allowing a judge to consider mitigating and aggravating factors when sentencing a defendant to death, along with state supreme court review, was not unconstitutional);
17. Jurek v Texas, 428 US 262, 268 (1976) (holding that the death penalty is not per se cruel and unusual).
18. See, for example, Roper v Simmons, 543 US 551, 563 (2005).
19. See also id at 574-75 (stating that the Court will "bring its independent judgment to bear" on the question whether a punishment is cruel and unusual in violation of the Eighth Amendment).
20. US Const Amend VIII ("[N]or cruel and unusual punishment [shall be] inflicted.").
21. Weems v United States, 217 US 349, 378 (1910).
22. Kennedy v Louisiana, 128 S Ct 2641, 2649 (2008), quoting Trop v Dulles, 356 US 86, 101 (1958) (plurality).
23. See, for example, Trop, 356 US at 100 n 32.
24. 128 S Ct 2641 (2008).
25. Id at 2646.
26. Id at 2652.
27. Id at 2656.
28. Kennedy, 128 S Ct at 2656.
29. See id at 2656-57 (noting that the data in Atkins v Virginia, 536 US 304 (2002), revealed a much more significant indication of change regarding the execution of mentally retarded criminals).
30. Kennedy, 128 S Ct at 2657.
31. Id.
32. Id at 2658.
33. Id.
34. Kennedy, 128 S Ct at 2663 (citing evidence that children are especially vulnerable to suggestive questioning techniques and easily coerced about issues related to "body touch" and other abuse, leading to inaccurate testimony).
35. 543 US 551 (2005).
36. See id at 581.
37. Id at 564.
38. Id at 567.
39. See Roper, 543 US at 559-60.
40. Id at 564 (drawing a parallel between the evidence of national consensus against the juvenile death penalty and that against the death penalty for mentally retarded criminals).
41. Id at 565.
42. Id at 565-66.
43. Roper, 543 US at 566.
44. See id at 575-78.
45. See, for example, Ernest A. Young, Comment, Foreign Law and the Denominator Problem, 119 Harv L Rev 148, 148-49 (2005).
46. See also Roger P. Alford, Agora: The United States Constitution and International Law: Misusing International Sources to Interpret the Constitution, 98 Am J Intl L 57, 61 n 30 (2004) (predicting the influence of international opinion in the Court's consideration of the juvenile death penalty).
47. See id at 564 (noting the importance of an independent assessment of disproportionality of punishment).
48. 536 US 304 (2002).
49. See id at 318-21.
50. Id at 314-15.
51. Id at 316.
52. See Atkins, 536 US at 312.
53. See id at 321 (overruling Penry v Lynaugh, 492 US 302 (1989), which held that the execution of mentally retarded criminals does not violate the Eighth Amendment);
54. Roper, 543 US at 574 (overruling Stanford v Kentucky, 492 US 361 (1989), which held that the execution of a juvenile does not violate the Eighth Amendment).
55. See Atkins, 536 US at 314-16 (stating that many state legislatures began to prohibit the death penalty for mentally retarded criminals after the Penry decision);
56. Roper, 543 US at 574 (asserting that "[t]o the extent Stanford was based on review of the objective indicia of consensus that obtained in 1989, it suffices to note that those indicia have changed").
57. 487 US 815 (1988).
58. See id at 826-33 (plurality).
59. 492 US 361 (1989).
60. Compare id at 370-71 (noting that the empirical data did not sufficiently indicate a trend away from executing juveniles), with Roper, 543 US at 565-66 (pointing to the trend away from executing juveniles since Stanford and noting that even the governor of Kentucky commuted Stanford's sentence).
61. For a comprehensive account, see generally James S. Liebman, Slow Dancing with Death: The Supreme Court and Capital Punishment, 1963-2006, 107 Colum L Rev 1 (2007).
62. 408 US 238 (1972) (per curiam).
63. Id at 239-40 (reversing the death penalty sentences of the defendants).
64. See id at 305-06 (Brennan concurring) (suggesting that, because the majority of criminals are punished sufficiently by imprisonment, there is no justification for the death penalty in a few instances);
65. id at 358-60 (Marshall concurring) (asserting that the American people find the death penalty to be "morally unacceptable").
66. See id at 253 (Douglas concurring) (asserting that under current laws, no standards govern the imposition of death, where people are sentenced "under the whim of one man or of 12");
67. id at 309-10 (Stewart concurring) (noting that application of the death penalty is so unusual that it can be said to be "wantonly" and "freakishly" imposed);
68. id at 313 (White concurring) (noting that the death penalty is imposed too infrequently to be "of substantial service to criminal justice").
69. See Furman, 408 US at 299 (Brennan concurring) ("[T]he history of this punishment is one of successive restriction.");
70. id at 313 (White concurring) (asserting that capital punishment had "for all practical purposes run its course");
71. Del Dickson, ed, The Supreme Court in Conference (1940-1985): The Private Discussions behind Nearly 300 Supreme Court Decisions 617-18 (Oxford 2001) (describing a conference among the justices, where Brennan and White noted that public opinion against the death penalty had been growing).
72. See Furman, 408 US at 291 (Brennan concurring).
73. In the 1960s four states completely abolished capital punishment: Michigan in 1963, Oregon in 1964, and Iowa and West Virginia in 1965. An additional three states significantly reduced their use of capital punishment: New York and Vermont in 1965, and New Mexico in 1969. See id at 372 appendix 1 (Marshall concurring).
74. See People v Anderson, 493 P2d 880 (Cal 1972);
75. State v Funicello, 286 A2d 55 (NJ 1972). The US Supreme Court itself, in 1968, had made a small move in the same direction, holding that states could not disqualify potential jurors who had reservations about the death penalty, unless they were unequivocally unwilling to impose it. See Witherspoon v Illinois, 391 US 510, 521-22 & n 21 (1968).
76. See Furman, 408 US at 239-40 (per curiam).
77. See Gregg v Georgia, 428 US 153, 179-80 & n 23 (1976).
78. See id at 179-80.
79. See, for example, Jurek v Texas, 428 US 262, 276 (1976) (upholding a capital punishment statute in Texas);
80. Proffitt v Florida, 428 US 242, 252-53 (1976) (upholding a capital punishment statute in Florida);
81. Gregg, 428 US at 194-96 (upholding a capital punishment statute in Georgia).
82. US Const Amend XIV ("No state shall⋯ deny to any person within its jurisdiction the equal protection of the laws.").
83. See Mississippi University for Women v Hogan, 458 US 718, 724 (1982) (noting that the burden is on the party seeking to uphold a policy that discriminates on the basis of gender).
84. See also, for example, Nguyen v Immigration and Naturalization Service, 533 US 53, 60-61 (2001) (concluding that the statute in question met the intermediate scrutiny standard);
85. United States v Vtrginia, 518 US 515, 533 (1996).
86. See, for example, Nguyen, 533 US at 76 (O'Connor dissenting) ("[O]verbroad sex-based generalizations are impermissible even when they enjoy empirical support.");
87. J.E.B. v T.B., 511 US 127, 139 n11 (1994) (noting that, even with statistical support, some stereotypes may violate the Equal Protection Clause);
88. Craig v Boren, 429 US 190, 199 (1976);
89. Weinberger v Wiesenfeld, 420 US 636, 645 (1975) (noting that although the idea that men are the primary breadwinners enjoys empirical support, it is insufficient as the basis of an irrefutable presumption).
90. See Hogan, 458 US at 726-29 (noting that 98 percent of all registered nurses were women, according to a 1981 statistic issued by the US Census Bureau).
91. See, for example, Califano v Goldfarb, 430 US 199, 205-06 (1977);
92. Weinberger, 420 US at 645.
93. See Goldfarb, 430 US at 201-02 (invalidating a statute providing survivors' benefits, where a widower could recover only if he was receiving at least half his income from his deceased wife, but where a widow could recover without any showing of support);
94. Weinberger, 420 US at 638-39.
95. See Goldfarb, 430 US at 207;
96. Stanton v Stanton, 421 US 7, 14 (1975);
97. Weinberger, 420 US at 645;
98. Schlesinger v Bollard, 419 US 498, 508 (1975).
99. See, for example, Frontiero, 411 US at 685 n 15, 689 n 23 (citing statistics about women's increased presence in the workforce);
100. Stephanie Seymour, Women As Constitutional Equals: The Burger Court's Overdue Evolution, 33 Tulsa L J 23, 26-28 (1997) (discussing the societal changes that occurred between 1961 and 1971);
101. Ruth Bader Ginsburg, Gender and the Constitution, 44 U Cin L Rev 1, 3-15 (1975) (noting that in 1971, the courts first began to carefully examine "sex lines" drawn by legislation);
102. US Department of Labor, Bureau of Labor Statistics, Work Experience of the Population, 1969 45 (1971);
103. Sophie C. Travis, The U.S. Labor Force: Projections to 1985, 93 Monthly Lab Rev 3, 3 (1970) (noting that the pace of women entering the workforce began to pick up in about 1965).
104. See, for example, Title IX of the Education Amendments of 1972, Pub L No 92-318, 86 Stat 373, codified at 20 USC § 1681 (making gender discrimination unlawful in many instances in the education context);
105. Title VII of the Civil Rights Act of 1964, Pub L No 88-352, 78 Stat 253, codified in relevant part at 42 USC § 2000e-2 (making gender discrimination unlawful in the employment context);
106. Equal Pay Act of 1963, Pub L No 88-38, 77 Stat 56, codified at 29 USC § 206(d) (making differences in wages due to gender unlawful).
107. 430 US 313 (1977).
108. 430 US 199 (1977).
109. Webster, 430 US at 320, quoting Goldfarb, 430 US at 223 (Stevens concurring).
110. 518 US 515 (1996).
111. See id at 536-38, 542-45 (noting that the legal and medical professions once were thought to be inappropriate for women).
112. In fact, Virginia had appointed a commission to reexamine state higher education policy, and VMI itself undertook such a reexamination. But the Court concluded that neither of those reexaminations established a modern, acceptable justification for excluding women from VMI. See id at 539.
113. See id at 533, 535-36, 539 (noting that the justification must be genuine and not merely in response to litigation).
114. See Boiger v Youngs Drug Corp, 463 US 60, 70-71 (1982) (stating that the government may advance new justifications for prohibiting contraceptive mail advertisements, even though those justifications were not asserted during the original enactment of the statute).
115. See also Doe v Bolton, 410 US 179, 190-91 (1973) (noting that the state could attempt to justify an abortion statute as protecting fetal life, even though the historical justification for the statute focused on the woman's safety).
116. See Virgnia, 518 US at 533 n 7.
117. The other was The Citadel, in South Carolina. See id at 569 (Scalia dissenting).
118. Id at 544.
119. Id at 542 n 11.
120. See Virginia, 518 US at 579 (Scalia dissenting).
121. US Const Amend XIV ("[N]or shall any state deprive any person of life, liberty, or property, without due process of law⋯").
122. 198 US 45 (1905) (striking down a New York law that set the maximum number of hours bakers could work).
123. See Griswold v Connecticut, 381 US 479, 485-86 (1965) (holding that Connecticut anti-birth-control laws violate the constitutional right to "marital privacy").
124. See Roe, 410 US at 164-67 (holding that failure to make allowances for different stages of pregnancy is sufficient to render a state law outlawing abortion unconstitutional).
125. See Lawrence v Texas, 539 US 558, 578-79 (2003) (overruling Bowers v Hardwick, 478 US 186 (1996), which held that prohibitions on same-sex sodomy did not violate the Constitution).
126. For perhaps the best-known example of the received wisdom that modern substantive due process cases, like Roe v Wade, are essentially indistinguishable from the pre-New Deal cases,
127. see John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 14-15 (Harvard 1980).
128. 381 US 479 (1965).
129. Id at 485-86.
130. See id at 485 (Douglas);
131. id at 486-87 (Goldberg, Warren, and Brennan concurring);
132. id at 500 (Harlan concurring);
133. id at 502-03 (White concurring).
134. Id at 515-16 (Black dissenting) (arguing that the Court relies on the same "natural law due process philosophy" found in Lochner, which many later decisions have repudiated).
135. On reproduction, see Skinner v Oklahoma, 316 US 535, 541-43 (1942) (holding that the compulsory sterilization of larcenists, but not embezzlers, violated the Equal Protection Clause). On children, see Pierce v Society of the Sisters, 268 US 510, 530-35 (1925) (holding unconstitutional an Oregon statute requiring public - as opposed to private-education for children between the ages of eight and sixteen);
136. Meyer v Nebraska, 262 US 390, 400-03 (1923) (holding unconstitutional a state statute that prohibited teaching students in a language other than English).
137. Poe v Ullman, 367 US 497, 554-55 (1960) (Harlan dissenting) (citing also international evidence of the unusual nature of the statute in question). In his concurring opinion in Griswold, Justice Harlan said that the Connecticut statute was unconstitutional "[f]or reasons stated at length in my dissenting opinion in Poe v Ullman" 381 US at 500 (Harlan concurring).
138. The statute did, however, force a number of family planning clinics to close down;
139. Griswold itself was a prosecution of officials of such a clinic. See Mary L. Dudziak, Just Say No: Birth Control in the Connecticut Supreme Court before Griswold v. Connecticut, 75 Iowa L Rev 915, 917-20 (1990) (discussing the political climate surrounding birth control before, during, and after Griswold).
140. Poe, 367 US at 554 (Harlan dissenting).
141. See also Griswold, 381 US at 506 (White concurring in the judgment) (referring to the "total nonenforcement⋯ and apparent nonenforcibility" of the statute against married couples).
142. Griswold, 381 US at 506-07 (White concurring).
143. See Peter Smith, Comment, The History and Future of the Legal Battle over Birth Control, 49 Cornell L Q 275, 277-79 (1964) (noting the variety of legislative tools employed in US jurisdictions other than Connecticut).
144. 539 US 558 (2003).
145. On Griswold, see Bickel, The Least Dangerous Branch at 143-56 (cited in note 1). On Lawrence, see Cass R. Sunstein, What Did Lawrence Hold? Of Autonomy, Desuetude, Sexuality, and Marriage, 2003 S Ct Rev 27, 29-30, 48-52, 54-60 (finding three primary strands of reasoning in Lawrence, one of which was desuetude).
146. See, for example, Ely, Democracy and Distrust at 73, 221 n 4 (cited in note 87).
147. See generally, for example, Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Duke 1993);
148. William E. Nelson, The Impact of the Antislavery Movement upon Styles of Judicial Reasoning in Nineteenth Century America, 87 Harv L Rev 513 (1974).
149. See also Barry Cushman, Some Varieties and Vicissitudes of Lochnerism, 85 BU L Rev 881, 999 & n 655 (2005).
150. See, for example, Gillman, The Constitution Besieged at 127-29 (cited in note 101) (describing the Lochner Court's concern that legislatures would enact extensive legislation favoring employees over employers).
151. See Griswold, 381 US at 527 (Stewart dissenting): I think this is an uncommonly silly law. As a practical matter, the law is obviously unenforceable, except in the oblique context of the present case. As a philosophical matter, I believe the use of contraceptives in the relationship of marriage should be left to personal and private choice, based upon each individual's moral, ethical, and religious beliefs. As a matter of social policy, I think professional counsel about methods of birth control should be available to all, so that each individual's choice can be meaningfully made. But we are not asked in this case to say whether we think this law is unwise, or even asinine.
152. See David A. Strauss, Why Was Lochner Wrong?, 70 U Chi L Rev 373, 382-86 (2003).
153. 405 US 438 (1972).
154. See, for example, Lawrence, 539 US at 565;
155. Vacco v Quill, 521 US 793, 809-10 (1997) (Souter concurring in the judgment);
156. Washington v Glucksberg, 521 US 702, 720 (1997);
157. Bowers, 478 US at 190-91;
158. Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833, 851 (1992).
159. Eisenstadt, 405 US at 448-49.
160. See Smith, Comment, 49 Cornell L Q at 286-87 (cited in note 97).
161. See Eisenstadt, 405 US at 448-49 (noting that the state's supposed goal of creating "virtuous" and sexually healthy men and women did not justify differential treatment of single people).
162. See Railway Express Agency, Inc v New York, 336 US 106, 112-13 (1949) (Jackson concurring).
163. Eisenstadt, 405 US at 448-49.
164. Id at 448 (asserting that such a legislative assumption was "plainly unreasonable"). 113 431 US 494 (1977) (plurality).
165. See, for example, Lawrence, 539 US at 593 (Scalia dissenting);
166. Glucksberg, 521 US at 727 n 19;
167. Michael H. v Gerald D., 491 US 110, 121-24 (1989);
168. Pala Hersey, Moore v. City of East Cleveland: The Supreme Court's Fractured Paean to the Extended Family, 14 J Contemp Legal Issues 57, 62 (2004) ("[T]he Moore plurality's position has played a prominent role in some of the Court's most important decisions on Substantive Due Process.").
169. Moore, 431 US at 516-21 (Stevens concurring) (concluding that there is no precedent for applying an ordinance to exclude an owner's relatives from residing on his property).
170. Id at 495 (plurality) (noting the odd and complex section of the statute at issue, in which it defines "family" as only including certain related individuals).
171. Id at 520 (Stevens concurring).
172. 367 US 497 (1960).
173. See id at 503 (plurality).
174. Id at 504.
175. See Robert Burt, The Constitution of the Family, 1979 S Ct Rev 329, 389-91.
176. 521 US 702 (1997).
177. See id at 722.
178. Id at 723.
179. See id at 736-38 (O'Connor concurring) (declining to reach the "narrower question" of whether a dying person has a constitutional interest in controlling his death);
180. id at 738-52 (Stevens concurring in the judgment) (encouraging further debate about the appropriateness of punishment for attempted suicide);
181. id at 752-89 (Souter concurring in the judgment) (finding "merciful termination" to be consistent with a physician's ethical obligations);
182. id at 789 (Ginsburg concurring in the judgment) (agreeing with Justice Sandra Day O'Connor);
183. id at 789-90 (Breyer concurring in the judgment) (seeing the question as whether a terminally ill patient has the right to die a dignified death and finding more support for an affirmative answer to this question than to the one asked by the majority, whether a terminally ill patient has a right to physician-assisted suicide).
184. See Glucksberg, 521 US at 706-07, 716-17.
185. Id at 716, 719.
186. 521 US 793 (1997).
187. Id at 804-05.
188. Id at 806-07.
189. 478 US 186 (1986).
190. See id at 190-94.
191. See Lawrence, 539 US at 568-71 (asserting that laws targeting same-sex couples, far from having "ancient roots," only emerged in the last third of the twentieth century).
192. Id at 571.
193. Id at 571-72.
194. Id at 572.
195. Lawrence, 539 US at 572-73.
196. Glucksberg, 521 US at 721, quoting Moore, 431 US at 503.
197. See Lawrence, 539 US at 585 (stating that "other reasons exist to promote the institution of marriage beyond mere disapproval of an excluded group").
198. See also Mary Anne Case, Of "This" and "That" in Lawrence v. Texas, 2003 S Ct Rev 75, 80-83, 133-37.
199. See Lofton v Department of Children and Family Services, 358 F3d 804, 811-12 (11th Cir 2004), cert denied, 125 S Ct 869 (2005).
200. See, for example, Goldfarb, 430 US at 201-02 (holding that certain provisions of the Social Security Act violated due process and equal protection);
201. Weinberger v Wiesenfeld, 420 US 636, 637-39 (1975) (same).
202. US Const Art I, § 8, cl 3 ("Congress shall have the power⋯ [t]o regulate commerce-").
203. 514 US 549 (1995).
204. 529 US 598 (2000).
205. 514 US at 551 (holding that the Gun-free School Zones Act exceeded congressional authority because possession of a gun near a school was not economic activity that substantially affected interstate commerce).
206. 529 US at 601-02 (holding that Congress lacked Commerce Clause authority to enact a statute that provided a federal civil remedy for victims of gender-motivated violence).
207. See, for example, Alfred E. Kahn, The Political Feasibility of Regulatory Reform: How Did We Do It?, in Leroy Graymer and Frederick Thompson, eds, Reforming Social Regulation: Alternative Public Policy Strategies 247, 249-50 (Sage 1982) (noting the emergence of "revisionist scholarship" from approximately 1956 to 1981, which viewed regulation as mostly in opposition to the public interest).
208. On airline deregulation, see Air Cargo Deregulation Act, Pub L No 95-163, 91 Stat 1278 (1977), codified as amended at 49 USC § 40101 et seq;
209. Jimmy Carter, Remarks on Signing S. 717 and H.R. 6010 into Law, 13 Weekly Comp Pres Doc 1741, 1742-43 (Nov 9, 1977) (stating that airlines exclusively hauling cargo could now operate according to the "workings of the market");
210. Airline Deregulation Act, Pub L No 95-504, 92 Stat 1705 (1978), codified as amended at 49 USC § 40101 et seq;
211. Jimmy Carter, Remarks on Signing S. 2493 into Law, 14 Weekly Comp Pres Doc 1837, 1837-39 (October 24, 1978) (stating that the Airline Deregulation Act would fight inflation and lead to low-price air transportation). For Carter's plan to deregulate oil,
212. see Jimmy Carter, Energy Address to the Nation, 15 Weekly Comp Pres Doc 609, 609-14 (Apr 15, 1979). On the deregulation of trucking,
213. see Motor Carrier Act, Pub L No 96-296, 94 Stat 793 (1980), codified as amended at 49 USC § 13101 et seq (adjusting the regulatory scheme for motor carriers);
214. Jimmy Carter, Remarks on Signing S 2245 into Law, 16 Weekly Comp Pres Doc 1261, 1261-65 (July 1, 1980) ("This act will bring the trucking industry into the free market system where it belongs.").
215. See Economic Report of the President 4-5, 7-8 (GPO 1982) (noting the administration's goal of drastically reducing federal government intervention, other than that of closely reviewing all regulatory activity);
216. Gregory B. Christiansen and Robert H. Haveman, The Reagan Administration's Regulatory Relief Effort: A Mid-term Assessment, in George C Eads and Michael Fix, eds, The Reagan Regulatory Strategy: An Assessment 49, 67 (Urban Institute 1984) (noting that President Reagan wanted to deregulate the economy in light of empirical data in the Economic Report of the President of 1982, which suggested that regulation had been detrimental to the economy during the 1970s).
217. William J. Clinton, Address before a Joint Session of the Congress on the State of the Union, 32 Weekly Comp Pres Doc 90, 90 (Jan 23, 1996) ("We know, and we have worked to give the American people a smaller, less bureaucratic Government in Washington. And we have to give the American people one that lives within its means. The era of big Government is over.").
218. See Lopez, 514 US at 565.
219. 545 US 1 (2005).
220. See id at 32-33 (citing the "undisputed magnitude of the commerdal market for marijuana" as a reason to uphold the federal law).
221. 109 US 3 (1883).
222. See id at 24-26 (stating that Congress had no authority to pass such a law under the Thirteenth or Fourteenth Amendment). I am indebted to Barry Cushman and Michael Klarman for the idea that The Civil Rights Cases are an example of modernization.
223. Civil Rights Act of 1875, 18 Stat 335, 336 (requiring that all "citizens of every race and color" shall not be deprived of "full and equal enjoyment of the accommodations ⋯ of inns [and] public conveyances").
224. See The Civil Rights Cases, 109 US at 11 ("Individual invasion of individual rights is not the subject-matter of the [Fourteenth] amendment.").
225. See id at 25 ("Mere discriminations on account of race or color were not regarded as badges of slavery."). In 1964, the Court upheld the similar public accommodations provisions of the Civil Rights Act of 1964 as a valid exercise of Congress's power under the Commerce Clause. See Katzenbach v McClung, 379 US 294, 304-05 (1964) (holding that Congress could proscribe racial discrimination in restaurants that profited from interstate business);
226. Heart of Atlanta Motel, Inc v United States, 379 US 241, 261-62 (1964) (upholding public accommodations provisions that applied to a motel serving interstate travelers). But that expansive interpretation of the Commerce Clause was, of course, not accepted until after the New Deal. See, for example, NLRB v Jones & Laughlin Steel Corp, 301 US 1, 46-47 (1937) (holding that Congress has authority to protect the right of employees to organize, as labor disputes can disrupt interstate commerce).
227. See, for example, Eric Fbner, Reconstruction: America's Unfinished Revolution, 1863-1877 556 (Harper & Row 1988) ("[T]he law represented an unprecedented exercise of national authority, and breached traditional federalist principles more fully than any previous Reconstruction legislation.").
228. See Michael J. Klarman, From Jim Crow to Civil Rights;
229. The Supreme Court and the Struggle for Racial Equality 49 (Oxford 2004) (noting that the Civil Rights Act of 1875 was passed "when Republican commitment to racial equality was near its zenith").
230. See Foner, Reconstruction at 553-56 (cited in note 159).
231. On the end of Reconstruction, see id at 587-601 (discussing generally the economic and social reasons behind the abandonment of Reconstruction and that abandonment's societal impact).
232. See id at 556;
233. Klarman, From Jim Crow to Civil Rights at 49 (cited in note 160).
234. See Griswold, 381 US at 506 (White concurring in the judgment).
235. See, for example, Jones v Alfred H. Mayer Co, 392 US 409, 412-13 (1968) (holding that a statute requiring equal treatment in the conveyance of real property is a valid exercise of Congress's power under the Thirteenth Amendment).
236. See note 158.
237. 304 US 144 (1938).
238. The footnote reads, in part: It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. [Citing cases involving "restrictions upon the right to vote," "restraints upon the dissemination of information," "interferences with political organizations," and "prohibition of peaceable assembly"] ⋯ Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, or national, or racial minorities; [or] whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. See id at 152 n 4. For an argument that the term "discrete and insular" misdescribes the kinds of groups that are at a disadvantage in the political process, see generally Bruce A. Ackerman, Beyond Carolene Products, 98 Harv L Rev 713 (1985).
239. Most notably, see Ely, Democracy and Distrust at 75-77 (cited in note 87).
240. See text accompanying notes 87, 101-04.
241. This is the central theme of Ely, Democracy and Distrust at 75-77 (cited in note 87) (noting that the Carotene Products footnote gives a clear indication of how judges should examine the constitutionality of legislation, which does not include yielding to any personal moral judgments).
242. See, for example, Lewis F. Powell, Carolene Products Revisited, 82 Colum L Rev 1087, 1090 (1982) (noting the subjective flexibility of "discrete and insular");
243. Paul Brest, The Substance of Process, 42 Ohio St L J 131, 140-42 (1981).
244. See Brest, 42 Ohio St L J at 136-37 (cited in note 172) (pointing out, as an example, that under Ely's approach there would be no justification for applying a relaxed scrutiny test for regulations targeting burglars, while applying a strict scrutiny test for regulations aimed at homosexuals);
245. Laurence Tribe, The Puzzling Persistence of Process-based Constitutional Theories, 89 Yale L J 1063, 1073-74 (1980) (noting the confusion over which minority groups are sufficiently "discrete and insular").
246. For a classic use of this approach, see the opinion of Justice John M. Harlan in Moragne v States Marine Lines, 398 US 375, 379-93 (1970) (relying on the trend that every state had enacted a wrongful-death statute to create a wrongful-death cause of action in the maritime context).
247. See also the discussion in Guido Calabresi, A Common Law for the Age of Statutes 151-52 (Harvard 1982) (providing two examples of courts that examined the overall "topography" of current legislation and dealt with the specific laws at issue accordingly).
248. See, in particular, William N. Eskridge, Jr, Dynamic Statutory Interpretation 52-55 (Harvard 1994) (arguing that statutes should be interpreted in a way that takes account of changed circumstances);
249. Calabresi, A Common Law at 163-66 (cited in note 174) (arguing that courts should occasionally exercise a nonconstitutional power to invalidate statutes provisionally-subject to legislative reenactment-if the court believes the statute is lacking in popular support or is otherwise inconsistent with the larger fabric of the law).
250. Harlan F. Stone, The Common Law in the United States, 50 Harv L Rev 4, 12-13 (1936) (suggesting that a statute should not always be treated as a command to be obeyed literally, but rather as a "recognition of policy" to be regarded by the courts as "a social datum or as a point of departure for the process of judicial reasoning"), quoted in Peter L. Strauss, On Resegregating the Worlds of Statute and Common Law, 1994 S Ct Rev 429, 431 (discussing the cooperation between the courts and administrative agencies in the New Deal era).
251. See Bickel, The Least Dangerous Branch at 111-98 (cited in note 1).
252. See id at 127-28.
253. See, for example, Philip P. Frickey, Getting from Joe to Gene (McCarthy): The Avoidance Canon, Legal Process Theory, and Narrowing Statutory Interpretation in the Early Warren Court, 93 Cal L Rev 397, 401-03 (2005).
254. See Bickel, The Least Dangerous Branch at 27-28 (cited in note 1).
255. See, for example, Alexander M. Bickel, The Supreme Court and the Idea of Progress 6, 95 (Yale 1978), quoting Arguments before the Court: Racial Segregation, 21 USLW 3161, 3164 (BNA 1952).
256. Bickel, The Supreme Court at 95 (cited in note 181) ("[The Court] can better suffer the kind of withdrawal that consists of not going forward than the kind that consists of visibly retreating.").
257. See Franklin E. Zimring and Gordon Hawkins, Capital Punishment and the American Agenda 33-34 (CUP Archive 1989).
258. Roe, 410 US at 140 & n 37 (pointing to fourteen states that had liberalized their abortion statutes).
259. Id at 119.
260. See, for example, Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 NC L Rev 375, 382 (1985).
261. 505 US 833 (1992).
262. Id at 845-46, 876.
263. See id at 881-901.
264. See also Webster v Reproductive Health Services, 492 US 490, 509-10 (1989) (holding that a ban on certain abortions in public facilities did not violate the Constitution);
265. Gonzales v Carhart, 127 S Ct 1610, 1619 (2007) (upholding an act proscribing certain abortion methods).
266. See Harris v McRae, 448 US 297, 326 (1980);
267. Maher v Roe, 432 US 464, 480 (1977).
268. See Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring about Social Change? 173-267 (Chicago 2d ed 2008) (describing the limited effect of the Supreme Court's abortion decisions on the increased availability of abortion).
269. For an overview, see Geoffrey R. Stone, et al, Constitutional Law 768-844 (Aspen 5th ed 2005). On voting, see, for example, Kramer v Union Free School District No 15, 395 US 621, 622 (1969) (holding that a New York education law violated equal protection where it only granted certain groups of individuals the right to vote in a school district election). On criminal appeals, see, for example, Douglas v California, 372 US 353, 357-58 (1963) ("[W]here the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.").
270. See 336 US 106, 112-13 (1949) (Jackson concurring): [T]here is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected.
271. The definitive account of the background and aftermath of Brown, and particularly of the tension between distinctively legal and more "political" considerations, is Klarman, From Jim Crow to Civil Rights at 290-343 (cited in note 160).
272. 384 US 436 (1966).
273. See Brown, 349 US at 301.
274. See Naim v Naim, 350 US 891, 891 (1956) (per curiam);
275. Loving v Virginia, 388 US 1, 12 (1967).
276. For the classic Statement, see Robert A. Dahl, Decision-making in a Democracy: The Supreme Court As a National Policy-maker, 6 J Pub L 279, 279-81 (1957).
277. See also, for example, Barry Friedman, Dialogue and Judicial Review, 91 Mich L Rev 577, 578-648 (1993) ("Like all the other segments of society, courts simply are, and will remain, participants in American political life.").
278. See Benjamin N. Cardozo, The Nature of the Judicial Process 141 (Yale 1921).