Judicial Power and American Character: Censoring Ourselves in an Anxious Age

By Robert F. Nagel | Go to book overview

1
Introduction: The Court as Cultural Barometer

Part of the romance of constitutional adjudication is the illusion of the "landmark case." Under the reassuring influence of this innocent notion, the Supreme Court seems to float above the political landscape and from its lofty position occasionally pull our policies toward heaven. The moral ambiguities, the backsliding, the unintended consequences -- these all pale in comparison to the vivid heroism of the Court's decision to intervene. Because political decisionmaking, which depends on our own virtue and luck, is sometimes frightening, often disappointing, and usually uncertain, the idea of the landmark case is a profound comfort. Whatever our own weaknesses, crucial policies are still possible; they can be imposed by an "independent" judiciary -- and permanently at that!

As alluring as such a conception of the Court's role has proven to be, especially to legal academics, the facts paint a different picture. At least since 1957, when the political scientist Robert Dahl published a classic study, we have known that the Court usually follows, rather than leads, public opinion and the political branches. 1 Not only in the results that it decrees but also in the style of its thought, the Court's constitutional interpretations are often reflections of political currents and class interests that are no more elevated than the official positions of the American Medical Association or the editorials of the New York Times. For instance, Miranda v. Arizona, the famous case establishing the rule that

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