This chapter shifts addresses the advocacy agenda of the LGBTQ rights movement, specifically the pivotal role played by the US Supreme Court. In less than two decades, the Court recognized the right to engage in same-sex sex, mandated recognition of same-sex marriage, and interpreted Title VII of the 1964 Civil Rights Act to include discrimination on the basis of transgender status and sexual orientation as prohibited forms of sex discrimination. These developments fundamentally altered the legal lives of LGBTQ people. However, systemic efforts to undermine the integrity of the courts threaten these victories and the lives built around them. This chapter concludes that the current dominant interpretive approach of the US Supreme Court, known as originalism, is overly restrictive and arguably an expression of restorative nostalgia that prevents the Court from fulfilling its duty as a constitutionally mandated check against tyranny. An independent judiciary can serve as a powerful bulwark against democratic decline; however, courts can also provide a powerful legal veneer for otherwise patently autocratic policies. Democracy scholars refer to this as autocratic legalism. The increasing specter of autocratic legalism in the Unites States threatens to diminish the role of the Court as a tool for democratic self-defense.

This chapter uses the United States Supreme Court as a paradigmatic case of an apex court reshaped by political polarization. We situate the Court within US political culture (individualism, popular sovereignty, checks and balances), trace the rise of polarization since the 1980s, and show a shift from ideological adjudication to partisan adjudication – and, from 2022, to partisan control by Republican nominated justices. We cite evidence of a more partisan jurisprudence (declining unanimity, sharper 6–3 splits) and a nominations process that prizes ideological reliability, mobilizes party networks, and normalizes hardball. We then track effects on the legal profession and public trust, including clerkship pipelines, and collapsing perceptions of neutrality. Finally, we map the reform backlash – jurisdiction-stripping, overrides, court-packing, balanced benches, and term limits – and preview our assessment in Part IV.

Americans looking back at the Declaration did so through court cases, political debate, and celebrations in popular culture. Numerous judicial decisions beginning in the late eighteenth century and continuing through the twentieth century have upheld the view that the Declaration of Independence created one nation, the United States of America. This was also the view of some of the greatest lawyers of the mid nineteenth century: Joseph Story, Daniel Webster, and Abraham Lincoln. Even Andrew Jackson, largely seen as a proponent of states’ rights, embraced this view in the nullification dispute with South Carolina. And ordinary Americans have celebrated the Fourth of July as the birth of a nation from the very beginning. For the thirteen independent nations view to be correct, all of these decisions, statements, and celebrations would have to be wrong. (They are not.)

Beccaria’s tract did not kill the death penalty but made its legitimacy and morality the subject of intense debate. In Britain and America the history of abolitionism is in some important respects individual. Britain sported a ‘Bloody Code’ that at its peak encompassed over 200 capital crimes. Romilly led the charge against the ‘Bloody Code’ (from 1808) and cited (correctly and with approval) Beccaria. Spokesmen in Parliament for the retentionist Paley (post mortem) were much more numerous. In North America, the influence of Beccaria was initially strong, but the United States is a federal republic, and criminal justice is with the individual states. In a way clearly related to slavery and race, hard-line attitudes to the death penalty have prevailed, especially in the South. The influence of Beccaria has inevitably waned; that punishments have lost their role and ‘appeal’ and deterrent value as a spectacle is one factor in this. Ironically, the hard labour that he advocated has been saddled with the name of ‘penal servitude’, and is the only form of slavery recognized by the US Constitution.

Chapter 6 explores five outlier cases, called “The Unfortunate Five,” in which the US Supreme Court rejected landowners’ challenges to land use and environmental regulations despite the Court’s strong protection of private property rights against regulations generally. These five cases have one factor in common: the developers’ plans to build affordable housing. After exploring the potential that Supreme Court justices are motivated by explicit race and class biases, the chapter delves into the potential for implicit bias to explain why these cases deviate from the norm: the justices believe that they are protecting the private property interests of neighboring landowners against unwanted affordable housing developments. Strategies are proposed, based on a number of empirical studies, for convincing courts that affordable housing does not pose a threat to the property values of nearby landowners and that, therefore, many government policies reflect an unconstitutional, irrational prejudice against low-income people of color who need affordable housing and the developers who seek to build it.

Chapter 7 uses the life and career of US Supreme Court Justice Louis Brandeis to contemplate how a Progressive social-justice advocate might seek to redress entrenched housing segregation today. While acknowledging that Brandeis did not expressly speak out for racial equality in strong and unequivocal words in judicial opinions, the chapter looks for present guidance in the kind of lawyer Brandeis was, including his Progressive cause advocacy and pioneering of the Brandeis brief using extensive social science data to support government policies addressing social and economic inequalities. Observing that the National Association for the Advancement of Colored People (NAACP) successfully used the Brandeis brief technique to overturn racial segregation in the courts, the chapter highlights the importance of evidence from sociological study about the adverse impacts of housing segregation and the interconnectedness of race and poverty in housing conditions. Brandeis would be cautious about judicial imposition of reparations but would support legislative consideration of reparations to remedy past discrimination, tailored to balance benefits and costs, as well as state and local policy solutions as laboratories of democracy.

Contrary to oft-repeated views, litigation over the KCIR did not result in a ban on compulsory arbitration: in the 1920s, it was understood that the KCIR cases showed compulsion was permissible in most of the era’s major industries. However, US Supreme Court rulings on the KCIR were important: the extremity of the KCIR’s design, and the self-discipline of its labor opponents, created cases that posed important legal questions in uniquely clear, simple form. Drawing from archival material as well as opinions, this chapter shows that KCIR-related litigation was seized upon as a chance to clarify the scope and character of state economic regulation authorized by the public interest, and whether the Fourteenth Amendment categorically protected peaceful, orderly strikes. Justice Taft’s 1923 ‘Wolff Packing Company’ opinion, typologizing regulation in the public interest, was a clarifying landmark underpinning the Court’s sharp anti-regulatory turn. Justice Brandeis’ 1926 Dorchy decision, flatly denying an absolute right to strike under the Fourteenth Amendment, was a stinging and enduring reversal for labor.

Circumstances for labor after the pandemic resemble those of the early 1920s: fragmented, labor-unfriendly law has severely curbed the growth of unions under economic conditions and a climate of public opinion remarkably favorable to new organizing. Supreme Court rulings on contracts, employment, unions, and administrative power are restoring many features of law to the conditions before the New Deal. States are the most promising governmental level for protecting organizing and widening its reach in the immediate future; reformers of the 1920s provide a model for an engaged approach to scholarship that can shape state policy. Revisiting the state legal and policy history of the early twentieth century is urgently needed to prepare for foreseeable effects of further Supreme Court reaction, and to explore the era’s remarkable diversity of policy design, which may bring to light both ideas and dormant law useful in addressing labor’s contemporary challenges.

This chapter traces the historical construction of whiteness in US law from the late eighteenth century, when the nation limited naturalized citizenship to “white” immigrants, through early twentieth-century Supreme Court cases in which individual Asian immigrants’ attempts to naturalize, citing the vagueness of racial prerequisite in federal law at the time, were denied on the basis of the court’s interpretations of the meaning of racial whiteness enshrined in the original 1790 statute. This genealogy of legal whiteness also examines how the boundaries and meaning of white identity evolve historically in relation to the racial logics of slavery in the law and post-Reconstruction segregationist legal orders. The chapter presents key critical paradigms for legal studies of whiteness and explores their generative potential for literary analysis through a reading of Charles W. Chesnutt’s 1901 novel The Marrow of Tradition in relation to the 1896 Supreme Court decision in Plessy v. Ferguson.

Laurence Steinberg describes the evolution of his career within the context of the rise of the study of adolescent development. At the time he began graduate school, in 1974, there was little research on normative adolescent development. Studies of this age group had focused mainly on problematic aspects of psychological functioning and were based largely on clinical populations. Now, however, research on normative adolescent development is central to the field of developmental psychology. Steinberg discusses his involvement in research on puberty and parent-adolescent relationships, the impact of after-school employment on teenagers’ behavior and well-being, nonschool influences on adolescent achievement and school engagement, age differences in judgment and decision-making, and in the application of the science of adolescent development science to the treatment of young people under the law. He also discusses how a series of unanticipated events had profound effects on the development of his career.

Chapter 8 examines how social hierarchies are reproduced through the operations of justice. It argues that justice institutions, whether national or supranational, are systematically characterised by restricted professional markets of repeat players (Galanter 1974) who act as gatekeepers of the relationship with justice users (individuals, corporations or states). The globalisation and financialisation of global value chains is reinforcing rather than weakening the post-Cold War competition between legal ordering claims. The contrasted development of justice institutions (from the US Supreme Court; asylum justice; interstate adjudication; investment arbitration to international criminal justice) demonstrates that it is fostering the global diffusion of the Wall Street model of the corporate law firm as an engine of legal globalisation and for the reproduction of legal and social hierarchies. This positions justice institutions as practical and symbolic boundary-making sites between capitalism’s so-called cores and its peripheries.

The ongoing debate about the ills of American democracy features core disagreements about both diagnosis and cure. The title of this book alludes to what is now a multi-decade lament among scholars and pundits focused on US politics regarding the rise of “polarization.” On this account, our problem is that political elites and even ordinary citizens are so divided along partisan lines that they are unable to come together to solve important public problems. Given this diagnosis, the cure would involve institutional changes designed to empower centrists of both parties and to weaken their extremist flanks. Meanwhile, a different group of observers – including students of both democratic procedures in the United States and autocratic governments elsewhere – has diagnosed the problem as partisan degradation rather than polarization. On this account, the key defects facing American democracy are rooted not in a bipartisan refusal to compromise, but in one party’s abandonment of the rules of the game. In other words, these observers trace democratic erosion to the transformation of the Republican Party into an anti-system party.

This chapter uses examples from the United States to sketch these and other aspects of toweringness as a relational concept. It examines toweringness as a relation between one judge and his or her colleagues, using brief case studies from the New Deal era, which show judges as dependent upon the historical circumstances in which they find themselves, and a case study of the relation between William J Brennan and Earl Warren, showing an aspect of a court’s bureaucratic or institutional organization with a discussion of law clerks and opinion-drafting, and as subject to re-evaluation using Felix Frankfurter as an example.

Most American legal scholars have been slow to recognize the significance of John Rawls’s idea of public reason for law. This failure on their part is surprising, given the applicability of public reason to American constitutional theory, doctrine, and practice; it is also unfortunate constitutional theorists are not availing themselves of one of the most interesting ideas found in contemporary political philosophy literature. The main purpose of this contribution is to explain why American legal scholars must develop a conception of constitutional public reason (CPR) that suits the particulars of the American legal system. The other purpose is to address an objection to CPR, namely that it would be too shallow to provide sufficient normative orientation when judges must answer the most challenging constitutional questions. The objector alleges that even if judges were to endorse the same conception of CPR, it still might be indeterminate. As it turns out, CPR probably is no more prone to indeterminacy than any other theory of constitutional adjudication. Indeed, such reason may generate more determinacy when the pool of reasons that judges may draw from is considerably smaller.

The losing side in Goldwater v. Ginzburg appealed, then asked the Supreme Court to review the appeals court verdict. The decision to file writ of certiorari (a formal request for the Court to review the case) was not an empty exercise. In the wake of New York Times v. Sullivan (1964), no one knew exactly how the new doctrine of libel – “actual malice” – would be applied or what its limits might be. This chapter looks at how the Supreme Court viewed Ralph Ginzburg and Fact magazine and shows how at least some of the justices reasoned about hearing the case. I trace Ginburg’s hope that he could loosen libel law at the highest level and Goldwater’s hope that he could protect future public figures from libel even under the dramatically loosened standard represented by Sullivan. The Court’s decision was the occasion for some of Justice Hugo Black’s most eloquent words. As I show, throughout the process the media and Goldwater’s supporters took a keen interest in the outcome, just as Goldwater had hoped.