THE OUTER LIMITS of the Supreme Court's power, wrote Robert G. McCloskey in 1960, are shaped by the constraints of democratic politics. "The nation expects the judges to aid in deciding policy questions," McCloskey concluded in his landmark study, "but the nation is prone, with sublime inconsistency, to grow fiercely resentful if the aid becomes repression, if the judges bypass certain ill-marked but nevertheless quite real boundaries."1 Throughout the Court's history, McCloskey wrote, the judges have been constantly aware of this intangible but very real limitation on their power; the Supreme Court, he wrote, "has seldom, if ever, resisted a really unmistakable wave of public sentiment. It has worked with the premise that constitutional law, like politics itself, is a science of the possible."2
For McCloskey, the Supreme Court's habit of deference to democracy was not merely a question of preference or constitutional philosophy. It was, quite literally, a matter of survival. Decisions like Dred Scott and the New Deal cases were "self-inflicted wounds" (to use Charles Evans Hughes's phrase) that threatened the Court's precarious and painstakingly cultivated role as guardian of the nation's fundamental law. While none of these wounds had been fatal, several had been serious, and McCloskey wondered just how many more such traumas the Court could sustain. 3
McCloskey was not alone in arguing that the Court was ultimately powerless in the face of a strong expression of popular will. Nor was he the only constitutional scholar to conclude that the Court's failure to heed the demands of the people could, at times, pose dangers to the Court's legitimacy or effectiveness, or even to its very survival. In fact, the theme of judicial weakness and vulnerability became a constant refrain among legal scholars and political scientists, and even among the justices themselves.