Minnesota Law Review
Members of the dominant faction of the current Supreme Court are apparently trying to have their cake and eat it, too. In some contexts, the Court uses constitutionally grounded notions of judicial restraint to deny rights-seeking plaintiffs access to the federal courts, while at other times the Court disregards these same notions and reaches out to decide unnecessary issues to restrict further individual rights. This Article has attempted to expose the Court's underlying agenda by examining the implications of these inconsistent lines of precedent. That agenda appears to be twofold: to change the Constitution from a document balanced between majoritarian and countermajoritarian premises to one that is primarily majoritarian, and to transform the role of the Court from the guardian of individual rights to the guardian of majority rule. This Article has also suggested one possible philosophical explanation for this doctrinal shift: it may reflect a move away from a jurisprudence of individual rights and toward a more communitarian theory of law. This communitarian theory is particularly apparent in those cases in which the Court limits individual rights created by the majority for the minority's benefit. In these situations, the Court may be acting to compensate perceived weaknesses in the legislative process; insulated from political pressures, the Court can insure that the silent majority is given a voice, albeit in court rather than in the legislature. Given that community-influenced decisions are a relatively recent phenomenon, there may be some dispute about whether this theory is adequate to explain the doctrinal shift. There should be dispute about whether the theory is adequate to justify it.
Issue Manipulation by the Burger Court, 70 Minnesota Law Review. 611
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/327