Copyright (c) 2003 Saint Louis University School of Law
Saint Louis University Law Journal
RESPONDENT: JUDICIAL EPOCHS IN SUPREME COURT HISTORY: SIFTING THROUGH THE FOSSIL RECORD FOR STITCHES IN TIME AND SWITCHES IN NINE
47 St. Louis L.J. 677
I. Merrill's Meteor: The Determinants of Judicial Cooperation
Human attitudes toward nature are notoriously biased in favor of things that humans can perceive, admire, and exploit. 1 Biodiversity preservation, for example, proceeds primarily on the assumption that conservation promises vast commercial benefits, 2 even though "the vast majority of endangered species probably will not cure cancer." 3 What human beings arrogantly call the "Age of Mammals" is more appropriately designated the "Age of Insects." 4 To overcome this bias, effective environmental protection demands that "those of us who love nature ... think about saving ordinary places and ordinary things." 5
As with nature, so with law. In the 2002 Childress Lecture, Thomas W. Merrill makes a powerful case that judicial epochs in Supreme Court history should be measured according to criteria other than the tenure of individual Chief Justices. 6 Professor Merrill is irrefutably correct in distinguishing the first eight Terms of the Rehnquist Court from that Court's record since 1994. As Professor Merrill demonstrates, the first eight Terms of the Rehnquist Court were characterized by fierce battles over high-profile social issues such as abortion, affirmative action, and public displays of religion. 7 Many of these clashes ended in frustration for the Court's conservative Justices. The record of futility extends beyond the conservative catastrophe of Planned Parenthood of Southeastern Pennsylvania v. Casey. 8 Thanks to the Rehnquist Court's failure to realign Establishment Clause jurisprudence in Lee v. Weisman, 9 Lemon v. Kurtzman's entanglement test 10 survives like "[a] ghoul in ...
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