Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 HARVARD LAW REVIEW 4 (2003).
By any measure this last Term has proved remarkable. Confirming the endless capacity of the Court to astonish and surprise, the 2002 Term has shattered entrenched images of the Rehnquist Court. If in its early years the Rehnquist Court was commonly tasked for its excessive deference to "majoritarian" decisionmaking, the Court in its 2002 Term sweepingly overruled Bowers v. Hardwick to invalidate antisodomy laws in some thirteen states. If in its more recent incarnation the Rehnquist Court has been vehemently denounced for its refusal to defer to congressional power, particularly in matters of structure and federalism, the Court in this last Term broadly upheld Congress's authority under Section 5 of the Fourteenth Amendment to enact the family leave provisions of the Family and Medical Leave Act of 1993 (FMLA). If the Rehnquist Court has been relentlessly criticized for its right-wing agenda, the Court in its 2002 Term turned unexpectedly liberal, forcefully approving the authority of universities to use affirmative action to select their students.
What are we to make of this Court? How are we to assemble these disparate but momentous decisions into a coherent account? One common theme is that the 2002 Term suggests a serenely confident Court, unflinchingly facing the most difficult and intractable questions of American constitutional law. This confidence has been growing in recent years. Whether we contemplate the "activism" of Justices who are intent on "reviving the structural guarantees of dual sovereignty," or instead the alleged "arrogance" of Justices who are determined to safeguard traditional civil rights and liberties, we find a Court that may vigorously divide on how and when to exercise the authority of judicial review, but that no longer seems to question the prerogatives of that authority as such. In future years this attitude will likely come to be exemplified by Bush v. Gore, a "swaggeringly confident" decision reflecting an institution unequivocally embracing its mission to withdraw "some issues from the battleground of power politics to the forum of principle." For those who had in years past urged the Warren Court uncompromisingly to extend law's empire, this self-assurance has produced an unexpectedly bittersweet triumph.
Date of Authorship for this Version
Post, Robert C., "Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law" (2003). Faculty Scholarship Series. Paper 179.