The modern court has issued rising numbers of 5-4 constitutional decisions -- rulings that fasten virtually unchangeable rules upon the country, on matters of intense national importance, by a court whose members can't agree among themselves about the decisions they're issuing, or the reasons that justify them.
The court, that is, functions not as the "one supreme Court" envisioned by the Constitution, but as a collection of nine individuals who privilege their own self-expression above the constitutional role assigned to the court -- namely, in Chief Justice John Marshall's famous phrase, to "say what the law is."
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The baleful effects of this practice of sharply divided rulings in constitutional cases are many and varied. The justices' indifference to speaking with one voice has meant, over the last 35 years, that a single "swing justice" has become the controlling voice of American constitutional law.
Can some of the legal historians out there help me understand what contributed to the breakdown of what was intended to be a unified Supreme Court?
1 comment:
This is another post that makes me sad it had no discussion.
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