Selected Supreme Court Cases 2001 Term (through April 30)
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Description
Over the past several Terms, it has seemed to me as if the Justices treated government regulation with a cynical skepticism bordering on hostility. A combination of libertarian ideology, corrosive criticism of government by “public choice” theoreticians, the collapse of communism as an external threat, and a generation of sustained economic prosperity caused a number of brilliant social critics to question the very idea of government. The power of the critique led to a Supreme Court increasingly unwilling to grant deference to coordinate branches, or to state legislatures. Indeed, I believe that in recent Terms the rough intellectual compromise expressed in footnote 4 of the Carolene Products case was in serious jeopardy. Under Carolene Products, the judiciary was expected to defer to the judgments of the political branches unless an argument premised on democratic failure counseled greater judicial involvement. Thus, under Carolene Products, government interference with free expression called for vigorous judicial review because of the tendency of the majority to use law to keep itself in power. Certain equality settings involving government efforts to harm discrete and insular minorities also called for vigorous judicial protection. Everything else was the province of democratic governance, with the judiciary's role confined to enforcer and interpreter, but not second-guesser.
Source Publication
Fourth Annual Supreme Court Review: October 2001 Term
Source Editors/Authors
Erwin Chemerinsky, Martin A. Schwartz
Publication Date
2003
Recommended Citation
Neuborne, Burt, "Selected Supreme Court Cases 2001 Term (through April 30)" (2003). Faculty Chapters. 1341.
https://gretchen.law.nyu.edu/fac-chapt/1341
