The Supreme Court and Constitutional Theory, 1953-1993

Ronald Kahn

Ronald Kahn greatly revises our understanding of Supreme Court decision making and its relation to constitutional theory in the eras of chief justices Earl Warren, Warren Burger, and William Rehnquist. In the process, he refutes the longstanding stereotypes of an activist Warren Court trying to legislate individual rights and of a visionless Burger Court hiding in its predecessor's shadows.

Kahn contends that the dominant view of the Supreme Court as just another political institution is incorrect. That view depicts an unprincipled court wavering before external politics and public opinion or bending to the political agendas of individual justices. Kahn counters that justices throughout the postwar epoch, while well aware of the political environment, have consistently relied upon legal precedent and constitutional principles-especially in cases relating to individual rights and popular sovereignty.

“A provocative and innovative critique of scholarly commentary on the work of the Supreme Court spanning some forty years.

—Journal of American History

“Kahn succeeds in asking us to more closely examine Supreme Court jurisprudence. Most important, he asks us to view constitutional law as art of a dialogue between the Supreme Court and an interpretive community which includes scholars ranging from Robert Dahl to Sanford Levinson. That may well be the lasting contribution of the book.

—American Review of Politics
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The Burger Court in particular, Kahn argues, had both a coherent vision and a highly complex understanding of malfunctions in the American polity and of fundamental rights in the Constitution. He cites as salient examples the Burger Court's controversial decision in Roe v. Wade and its decisions regarding gender equality, religious freedom, and the right to education of all children, even illegal aliens. He suggests that this same sensitivity, despite enormous popular and political pressures, has been demonstrated by the Rehnquist Court's decision in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992).

Kahn effectively reveals how the Supreme Court is influenced by its ongoing dialogue with scholars, judges, journalists, and others who debate the connections between constitutional law and democratic government. His critique of works by such prominent theorists as Robert Dahl, Martin Shapiro, Vincent Blasi, Anthony Lewis, Archibald Cox, Alexander Bickel, Herbert Wechsler, John Hart Ely, and Laurence Tribe, among others, provides valuable insights into this exchange between the court and its "interpretive community." His chapter on the new civic republicans like Michael Perry, Mark Tushnet, and Sanford Levinson, is especially provocative in its analysis of a potentially more productive guide for jurisprudence in the 1990s.

Combining theoretical sophistication with a fundamental comprehension of our nation's political institutions, Kahn's study should help demystify for scholars and students alike the workings of the Court and its place in our democracy.

About the Author

Ronald Kahn is professor of politics at Oberlin College. His articles have appeared in journals such as the Stanford Law Review, American Political Science Review, Journal of Legal Education, Polity, and Studies in American Political Development and in books such as The Oxford Companion to the Supreme Court of the United States and Judging the Constitution.