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How Social Movements Change (Or Fail To Change) the Constitution: The Case of the New Departure, 39 Suffolk L. Rev. 27 (2005)


“In truth, I am as distressed as the Court is,” Justice Antonin Scalia wrote in his dissent in Planned Parenthood of Southeastern Pennsylvania v. Casey, “about the ‘political pressure’ directed to the Court: the marches, the mail, the protests aimed at inducing us to change our opinions.” “How upsetting it is,” he continued, “that so many of our citizens . . . think that we Justices should properly take into account their views, as though we were engaged not in ascertaining an objective law but in determining some kind of social consensus.”

Scalia’s understanding of the judicial role is a familiar one. Social movements may protest long and loud for recognition of their constitutional claims, but judges are not supposed to heed them. Rather, they are supposed to follow the law, as best they can determine what the law is. As Chief Justice Rehnquist once explained, although judges are clearly as influenced by public opinion as anyone else living in the world, they are not supposed directly to respond to the claims of social movements.

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