Academic journal article Boston University Law Review

Quiet-Revolution Rulings in Constitutional Law

Academic journal article Boston University Law Review

Quiet-Revolution Rulings in Constitutional Law

Article excerpt


Some Supreme Court rulings make a grand entrance. Marbury v. Madison,1 McCulloch v. Maryland,2 and Miranda v. Arizona3 illustrate the point. In each of these cases, the Court launched a transformative constitutional principle in a setting marked by white-hot public debate. Oftentimes, high-profile decisions build on high-profile decisions that came before. Brown v. Board of Education4 drew on Sweatt v. Painter.5 Roe v. Wade6 pointed to the earlier Griswold v. Connecticut7 and Eisenstadt v. Baird8 decisions. The Court's same-sex-marriage ruling in Obergefell v. Hodges9 found support in Romer v. Evans,10 Lawrence v. Texas,11 and United States v. Windsor.12 With these pronouncements, too, visibility was high, and the effort to establish new doctrine met stiff resistance. Citizens took notice. Interest groups took sides. The media editorialized. Opinion leaders railed. Other opinion leaders railed right back.

Sometimes the legal community, more so than the larger political community, takes on the task of monitoring the Supreme Court's work. With regard to Craig v. Boren,13 for example, ordinary citizens likely had little interest in the nuances of state "near beer" regulation, but a majority of the Court used the case both to articulate and to justify a new "intermediate scrutiny" test for laws that treat women and men differently.14 In response, then-Associate Justice Rehnquist penned a vigorous dissent,15 and the importance of the ruling was hardly lost on lawyers and legal academics.16 Many cases fit the mold of Craig. The majority reasons its way to embracing a new legal principle in the face of objections set forth in a dissenting opinion. Constitutional analysts line up on one side or the other. The law takes shape in a crucible of robust disagreement within the legal profession.

Cases such as Marbury, Brown, and Craig-and less famous rulings that share their focus on thoughtful justification-dominate thinking about the Court's work. These are the cases that fill the pages of constitutional law casebooks, in part because the very elaborateness of their reasoning makes them lengthy in character. These decisions combine the announcement of major principles with conscientious exercises of the lawyerly craft, which in turn trigger reactions-often expressed in dissenting opinions-likewise rooted in reason-giving. These rulings conform to lawyerly notions about how law is done in part because lawyerly training and lawyerly work center on reasoned analysis.

Sometimes, however, the Court issues rulings of a very different kind. In these cases, the Court does not exercise the lawyerly craft. Instead, the Court lays down major doctrines without offering reasons on their behalf. New principles thus do not enter the law by earning victory in pitched battles. Instead, they capture ground-often sprawling ground-without the support of any analysis at all. This Article considers this set of "quiet-revolution rulings." In four parts, it documents and explores the significance of this important, but little-noticed, feature of the Supreme Court's constitutional work.

Part I offers examples of quiet-revolution rulings. An illustration is provided by Schenck v. United States,17 the First Amendment case that initially set forth the rhetoric of "clear and present danger."18 In Schenck itself, Justice Holmes used the phrase almost in passing, without stirring even a hint of objection from any other Justice. In dozens of later cases, however, the Court drew on this pronouncement to push First Amendment law in a strongly libertarian direction. As a result, a quiet revolution took place, and it took place because an action of the Court that went largely unnoticed at the time later played a major role in the remolding of constitutional doctrine.19 This Article shows that similar developments mark almost all areas of constitutional law. From incorporation to reverse incorporation, from means-ends analysis to the law of federal courts, from equal-protection limits to commerce-power doctrine-in all these areas, quiet legal revolutions have radically reshaped the legal landscape. …

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