The First Things symposiasts and many others, as I explained in chapter 1, have charged that in the modern period of American constitutional law, the Supreme Court of the United States has usurped our politics. Is the charge accurate? The answer I have provided in this book is only partial: I have focused only on Fourteenth Amendment issues--and only on a few such issues. 2 Nonetheless, the issues on which I have focused are among the most important and controversial in the modern period; moreover, they are, with a single exception, issues on which those who have recently charged the Court with judicial usurpation have themselves focused. Here is a brief summary of the conclusions I have reached in this book.
American constitutional history has been in large part a spasmodic running debate over the behavior of the Supreme Court, but [in almost two centuries] we have made curiously little progress toward establishing the terms of this war of words, much less toward achieving concord. . . . [T]hese recurring constitutional debates resemble an endless series of re-matches between two club-boxers who have long since stopped developing their crafts autonomously and have nothing further to learn from each other. The same generalizations are launched from either side, to be met by the same evasions and parries. Familiar old ambiguities fog the controversy, and the contestants flounder among them for a while until history calls a close and it is time to retire from the arena and await the next installment. In the exchange of assertions and counter- assertions no one can be said to have won a decision on the merits, for small attempt has been made to arrive at an understanding of what the merits are.
Robert G. McCloskey, The Modern Supreme Court1
|1.||In outlawing racially segregated public schooling and other instances of government-created or -maintained racial segregation, the Court did not usurp our politics.|
|2.||In subjecting government reliance on race-based affirmative action to a strict standard of review, the Court has not acted inappropri-|