The Supreme Court in the Era of Bifurcated Review I

Volume 2 of this series devoted several chapters to the emergence of what it called “guardian review” on the Supreme Court, a posture in which justices acted as guardians of individual rights against restrictions by the state. This volume contains several chapters exploring the replacement of that posture with “bifurcated review,” featuring a deferential attitude toward some restriction of individual rights and aggressive scrutiny of others. This chapter describes the evolution from guardian to bifurcated review on the Court and matches it to changes in the Court’s internal decision-making protocols from the 1940s through to the 1970s.

The Statutorification of Common-Law Fields

This chapter describes the process, over an interval between the years after World War I and the 1960s, in which most of the fields considered “basic” common-law subjects in legal education and the legal profession were dramatically affected by statutory developments that sought to modify common-law rules and doctrines in the fields. By the 1960s the “statutorification” of torts, contracts, commercial law, and criminal law was partially in place, and new rules for federal civil procedure had been promulgated.

Law and Politics

Bush v. Gore, when it was first decided, was widely criticized by commentators as an unjustifiable intervention by the Supreme Court into the Florida electoral process in the 2000 presidential election. Two decades later, the case seems much less significant, and arguably less controversial. The chapter traces the “journey” of the Supreme Court toward Bush v. Gore, which consisted of a combination of its abandoning the “political question” doctrine, which posited that the Court should avoid reviewing legislative decisions affecting the redistricting of voters in political elections, and the unique circumstances of the 2000 presidential election in Florida and Florida’s electoral processes.

The Supreme Court in the Era of Bifurcated Review III

The Supreme Court’s decisions interpreting the Due Process Clauses of the Fifth and Fourteenth Amendments followed an uneven pattern in the period covered in this volume. From a posture of aggressive review in cases posing due process challenges to state and judicial legislation, the court retreated to one of deference when the legislation affected “social and economic transactions.” But in other cases, such as when free speech and freedom of religion were restricted by legislative or administrative policies, the Court retained an aggressive posture. Eventually, after initially announcing that it eschewed “substantive” interpretations of the Due Process Clauses, the Court began advancing those interpretations in cases involving restrictions on the use of contraceptives and abortion decisions.

Conundrums of War and Law

This chapter discusses the emergence of “modern,” “total” war in late nineteenth- and twentieth-century America, and the relationship of modern war to traditional doctrines of the “law of war,” such as the treatment of “enemies,” “belligerents” and “nonbelligerents,” and prisoners of war, as well as the relationship of courts to the military in wartime.

The American Legal Academy and Jurisprudence I

The emergence of the subject of jurisprudence in the American legal academy and legal profession in the early twentieth century, with special attention to “modernist” theories of law and judging and the origins of a jurisprudential projective exemplifying those theories, American legal realism.

Introduction

The previous volume of this trilogy left off by summarizing momentous changes that, cumulatively, had transformed American society from its premodern state to modernity by the second decade of the twentieth century. As employed in that volume and this one, the term modernity means the presence of a world characterized by maturing industrial capitalism, a political culture featuring increased participatory democracy, the weakening of a hierarchical, class-based social order predicated on relatively fixed status distinctions, and the emergence of secular theories of knowledge and “scientific” methods of intellectual inquiry as competitors to theories and methods based on religious beliefs. By the close of the 1920s, all of those features of American life were in place....

The Supreme Court in the Era of Bifurcated Review IV

Equal protection arguments were once described by Justice Oliver Wendell Holmes as the “last resort” of persons making constitutional claims. The court’s reliance on the Equal Protection Clause was slight until the 1950s, in part because “equal protection” was understood only to implicate legislature classifications that were “partial” rather than general.” After the use of the Equal Protection Clause to invalidate racial segregation in public schools in Brown v. Board of Education, equal protection arguments became a staple of cases involving racial, gender, and sexual-preference discrimination.

The Supreme Court in the Era of Bifurcated Review V

Of all the areas of twentieth-century constitutional jurisprudence, that of free speech has had the most dramatic transformation. From a state of insignificance, the First Amendment has been applied against the states in the Due Process Clause of the Fourteenth Amendment and made the basis for invalidating restrictions on the expressive activities of political and religious minorities, corporations, contributors to political campaigns, and commercial advertisers.

The Supreme Court in the Era of Bifurcated Review II

The constitutional jurisprudence of foreign relations law was transformed over a period from the mid-1930s to the 1960s. The Supreme Court adopted an increasingly deferential posture toward executive decision-making in foreign affairs as executive agreements with foreign nations that did not take the form of treatises became increasingly common. The Court’s widening of due process rights in domestic cases did not occur in foreign relations cases until the end of the century, when habeas corpus claims were made by aliens detained on U.S. soil.