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The Lost Liberal Legal Imagination

Over the past few decades, the US Supreme Court has embraced methods of statutory interpretation that conveniently justify its radical rightward shift. As much as the progressive twentieth-century jurist Felix Frankfurter might lament this development, he bears much responsibility for it.

LONDON – The right-wing majority on the US Supreme Court holds the US Constitution in a vice-like grip. It took barely a moment to overturn Roe v. Wade, and with it, a half-century of jurisprudence. It is now engaged in a sustained assault on the “administrative state” (federal regulatory and enforcement agencies) and, if Justice Clarence Thomas gets his way, perhaps on contraception and same-sex consensual relations, too.

Anyone being introduced to the Court today would find it hard to believe that it was once a bastion of liberal values and a defender of basic dignity. Yet that was the case for much of the latter half of the twentieth century, when the court issued the first meaningful blow against segregation (in Brown v. Board of Education); recognized the right to privacy and paved the way for the sexual revolution (in Griswold v. Connecticut); and even, for a time, struck down the death penalty (in Furman v. Georgia). With Chief Justice Earl Warren presiding from 1953 to 1969, the Supreme Court ensured that the Constitution protected all Americans, not just the white majority.

This was a court that recognized its proper role in America’s constitutional firmament. Rather than seeing themselves as the arbiters of quasi-divine precepts ossified at the moment of decree, most justices understood that constitutional jurisprudence must respond to the realities of the day. Owing to the intellectual leadership of Justice William Brennan, the Warren Court made the dignity of the individual its constitutional lodestar. Those detained by the state and accused of crimes were guaranteed basic protections (as in Miranda v. Arizona). People could express their opinions more freely than ever, even if their views were considered “offensive or disagreeable” by most people. This legacy continued into the next generation of the Court, with a Brennan-led majority ruling in 1989 that even burning the American flag was fair game.