The liberties guaranteed by the Constitution of the United States—including freedom of speech, freedom of association, the free exercise of religion, and the guarantees of due process and equal protection under law—are designed to ensure to each individual the ability to pursue his or her own interests free from improper interference by the government. Since the government in a democracy is directed by the preferences of the majority, another way of describing the function of the entrenched liberty protections in the Constitution is to say that they protect the minority against the abuse of political power by the majority. The Constitution’s liberty guarantees are enforced by the federal courts through the exercise of the power of judicial review. In exercising this power, the federal courts therefore perform an essential role in securing the liberties that are fundamental to the democratic political tradition. If it is true that even a majority vote cannot justify the legitimacy of legislation inconsistent with respect for these liberties, then the exercise of the power of judicial review to enforce constitutionally protected rights is essential to ensure that the power of the majority is exercised legitimately.

Critics argue that assigning to the courts the authority to resolve certain categories of contested questions of value will lead to judicial overreach and unjustified interference with the majority’s exercise of power. This argument is deeply misleading. The most salient instances of judicial failure have involved judicial restraint and deference to the other branches of government rather than the exercise of judicial power. The cases that constitute paradigm examples of judicial failure—Plessy, Korematsu, Bowers v. Hardwick—involved excessive judicial deference and inaction, not judicial overreach. While critics argue that intervention by the courts to protect rights may produce bad consequences, the consequences of failure to intervene are tangibly more significant than the consequences of intervention. While consequentialist objections to judicial review do not, I have argued, undermine or qualify the arguments for the value and importance of the institution of judicial review, recent instances of judicial overreach point to the need for greater accountability. Nominees must be required to provide full disclosure of their judicial philosophy and approach to judicial reasoning, and members of the Senate must give that information significant weight in their deliberations.

Chapter Two presents an abbreviated history of judicial review, divided into six time periods. It documents four previous revolutions in constitutional law. The history suggests that future revolutions are almost inevitable. The chapter highlights two broad trends that are supported by empirical data. First, the Supreme Court shifted its primary focus from private law to public law between the late nineteenth century and the mid twentieth century. Second, the type of law that the Court applies to decide public law cases has changed. In the nineteenth century, the Court applied a mix of international law, statutes, and common law – but rarely constitutional law – to decide public law cases. By applying types of law other than constitutional law, the Court was engaging in weak judicial review. Since the Warren Court era, the Court has consistently applied constitutional law in more than 50 percent of public law cases. Application of constitutional law typically involves strong judicial review. When the Court applies constitutional law to decide public law cases, Congress cannot override Supreme Court decisions involving major public policy controversies.

This chapter surveys the Supreme Court’s evolving role and interpretive approaches during five historical eras leading up to the present one. During the chief justiceship of John Marshall (1801–35), the Court rendered important decisions and issued expansive interpretations of judicial power and national legislative authority that today are viewed as cornerstones of the constitutional order. The succeeding era under Chief Justice Roger Taney (1836–64) brought the fiasco of Dred Scott v. Sandford (1857), which held that Congress had no power to regulate slavery in the territories, and the erosion of judicial authority during the Civil War. During the Lochner era (1865–1937), the Court recoiled from enforcing Reconstruction Amendments that had enshrined rights of racial minorities while simultaneously taking aggressive steps to shield businesses from regulatory legislation. The ensuing era (1937–69) began with the collapse of judicial resistance to economic regulatory legislation during the New Deal and continued as the Court under the leadership of Earl Warren expanded the rights of racial and other minorities. During the post-Warren period (1969–2016), the Court, like the country, turned to the right. Nonetheless, many liberal decisions endured, and the Court upheld abortion rights, permitted affirmative action, and established a right to gay marriage.

In the summer of 1952, Ezra Pound told Guy Davenport that ‘the poet looks forward to what’s coming next in the poem’, as though the poem, not the poet, dictated the work. One way of interpreting this Delphic remark is to suppose that Pound meant pending events, whether in the poet’s head or out in the world, would determine the content of the later Cantos. Noel Stock called the late cantos ‘the diary of a mind’; therefore they inevitably comment on current events.