The Supreme Court and Constitutional Law, 1925-2000: Changing Stances of Constitutional Review
White, G. Edward, The Virginia Quarterly Review
To many Americans the Constitution, despite its authoritative status, seems to be a rather vague and open-ended document, whose meaning, as illustrated in judicial interpretations of its provisions, seems to change dramatically over the years. Many people are aware that the Constitution was once read to sanction slavery and the exclusion of women from many forms of public life, and is now read to prohibit slavery and to protect female American citizens from discrimination on the basis of their gender. They may also be aware that prayers in the public schools and prohibitions against desecration of the American flag coexisted with the Constitution for almost two centuries, but that in the late 20th century constitutional barriers to school prayer, and constitutional protections for flag-burners, have been established in Supreme Court decisions. Many have concluded, from these observations, that two oft-quoted observations about the Supreme Court's changing interpretations of the Constitution ring true. One, by Charles Evans Hughes, was that "we live under a Constitution, but the Constitution is what the judges say it is"; the other, by newspaper columnist Finley Peter Dunne, was that "the Supreme Court follows the election returns."
Because so many contested political and social issues have translated themselves into questions of constitutional law in the course of American history, it is tempting to conclude that Supreme Court decisions in constitutional cases are identical to the policy judgments rendered by elective branches of government. That conclusion is inaccurate. Although it is true that, in the long run, changes in the constitutional interpretations advanced by the Court can be seen to parallel changing attitudes in American society at large, such is not necessarily the case in the short run, for reasons that relate to the institutional role of judges as constitutional interpreters and the complicated relationship between constitutional claims brought to the Court and their cultural context. In particular, a very important ingredient in constitutional decision-making by the Court is often ignored in descriptions of changes in constitutional law.
That ingredient is the way in which the members of a Court, at a given point in time, define their posture in reviewing the actions of other branches of American government on constitutional grounds. It has made a great deal of difference, over the course of American constitutional history, whether the "approved" stance exercised by Supreme Court judges in reviewing constitutional challenges to legislation, or to executive or administrative policymaking, has been taken to be one of searching scrutiny, relaxed scrutiny, or some combination of those postures.
Too often the stances of judicial review adopted by Supreme Court justices have been given ideological labels, resulting in particular Courts being labeled as "liberal," "conservative," "progressive," or "reactionary." Judicial conceptions of the proper role of the Supreme Court in reviewing the policies of other branches on constitutional grounds cannot fruitfully be captured in such labels. Although such conceptions change over time, they tend to be shared by judges of quite different ideological convictions. Employing conventional political labels to characterize the constitutional review stance of the Court at any point in time only serves to obscure this dimension of the Supreme Court's constitutional law decisions.
In the following survey of developments in American constitutional law between 1925 and 2000, I will be highlighting the relationship of changing doctrines to changes in the "mainstream" stance of constitutional review adopted by the Supreme Court. Although I will be discussing connections between particular stances of review and their historical setting, my primary purpose is to disabuse readers of an inclination to believe that the Court's 20th-century constitutional law decisions have followed the election returns, or that they can be seen as the collective products of the idiosyncratic views of nine justices. …