Introduction: "The Judicial
Usurpation of Politics"
There is a dangerous tendency in these latter days to enlarge the functions of the courts, by means of judicial interference with the will of the people as expressed by the legislature. Our institutions have the distinguishing characteristic that the three departments of government are coordinate and separate. Each must keep within the limits defined by the Constitution. And the courts best discharge their duty by executing the will of the law-making power, constitutionally expressed, leaving the results of legislation to be dealt with by the people through their representatives.
Mr. Justice Harlan, dissenting, Plessy v. Ferguson ( 1896)1
I am about to sketch, in this introduction, a contemporary controversy about several important constitutional rulings by the Supreme Court of the United States. The rulings at issue were all handed down by the Court in the modern period of American constitutional law: the period since 1954, the year in which the Court made its historic and seminal decision in Brown v. Board of Education, 2 striking down racially segregated public schooling. 3 It bears mention, here at the outset, that controversy about one or more constitutional rulings by the Supreme Court -- broad, deep, and persistent controversy -- is not just a contemporary phenomenon. Such controversy, as students of American constitutional law well know, has been a perennial feature of American politics (as the date of this chapter's epigraph, from Pless v. Ferguson, serves to illustrate). Perhaps no constitutional ruling by the Court was more controversial in its day -- or more dire in its consequences -- than the Court's infamous pro-slavery decision, in 1857, in Dred Scott. 4 Other examples, though less spectacular, are nonetheless important. Two come immediately to mind. A half century after Dred Scott, the Court's decision in Lochner v. New York ( 1905), 5 striking down legislation forbidding bakery owners to require or permit their employees to work more than ten hours a day or sixty hours a week, pro