Copyright (c) 2008 The Trustees of Boston University
The Boston University Public Interest Law Journal
ARTICLE: THE SUPREME COMMON LAW COURT OF THE UNITED STATES
Boston University Public Interest Law Journal
18 B.U. Pub. Int. L.J. 119
Jack M. Beermann*
The U.S. Supreme Court's primary role in the history of the United States, especially in constitutional cases (and cases hovering in the universe of the Constitution), has been to limit Congress's ability to redefine and redistribute rights in a direction most people would characterize as liberal. In other words, the Supreme Court, for most of the history of the United States since the adoption of the Constitution, has been a conservative force against change and redistribution.
To those like me who grew up in the 1960s and 1970s, this thesis seems radically out of step with the reality of that era, in which the Supreme Court appeared to be creating and protecting fundamental rights and rights for minorities against powerful conservative forces. In recent years, however, this thesis has been accepted and even adopted by the left as a critique of judicial power and its effects. Mark Tushnet's book is perhaps the best example of a left-wing critique of judicial power, 1 but Tushnet does not stand alone in recognizing that a strong federal judiciary has not helped progressive causes. 2
The Supreme Court's activist conservative project is potentially limited by the federalism principles underlying the scope of the Constitution and other federal law. Because the federal courts generally and the Supreme Court in particular have no jurisdiction over state law, the Supreme Court can reshape state law only when it conflicts with federal law. Therefore, a striking aspect of the Supreme Court's methodology in recent years has ...
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