[The Supreme] Court of the modern era, like those of the past, has rendered a service of no small significance. From 1789 to the Civil War, the Court labored to establish a reasoned argument for the cause of union. From the war to 1937 it performed a similar function on behalf of laissez faire. Toward the end of each of these periods, the judges overstepped the practical boundaries of judicial power and endangered the place they had earned in the American system. Since 1937, the Court has striven to evolve a civil rights doctrine that will realize the promise of the American libertarian tradition, yet accord with the imperatives of political reality. . . . It would be a Pity if the judges, having done so much, should now once more forget the limits that their own history so compellingly prescribes.
-- Robert G. McCloskey, The American Supreme Court ( 1960)
THE MODERN COURT, McCloskey concluded in his landmark study, was in danger once again of overstepping the limits of its power and of endangering its place in the American system of government. In several cases, and especially in the desegregation cases of the mid-1950s, the Court had pushed forward at a rate that, to McCloskey, seemed "perilous and perhaps self-defeating." Surely, he warned, no purpose is served "when the judges seek the hottest political cauldrons of the moment and dive into the middle of them"; the clear lesson of the Court's history was that its "greatest successes have been achieved when it has operated near the margins rather than in the center of political controversy, when it has nudged and tugged the nation, instead of trying to rule it." If the modern Court refused to learn this lesson, McCloskey concluded, it risked repeating its greatest historical blunders. 1