The Modernizing Mission of Judicial Review

Constitutional interpretation usually looks to the past--to an old text, to history, to precedent, to tradition — in an effort to limit political majorities. But recently, the Supreme Court has taken a different approach to the Constitution: It has tried to anticipate trends in public opinion instead of taking lessons from the past; and, at the same time, instead of facing down popular majorities, the Court has been prepared to give way if it learns that it has misgauged public opinion. This approach — which might be called modernization — has characterized the Supreme Court’s recent work in several areas, including the Cruel and Unusual Punishment Clause of the Eighth Amendment and the limits on sex discrimination imposed by the Equal Protection Clause. Perhaps most interesting, the substantive due process decisions of the last 40 years are modernizing decisions, unlike the pre-New Deal substantive due process decisions to which they are often, mistakenly, compared. Modernization is an appealing approach in many ways. Among other things, it holds out the hope of more easily reconciling judicial review with democracy. But modernization also raises serious questions--particularly that the courts may distort the political process and may be too willing to accommodate what they perceive as the demands of popular opinion, at the expense of a principled judicial role.