Vanderbilt Law Review

First Page



Much has been written about the change in the Supreme Court's judicial philosophy, as a new, ascendant majority has been able successfully to implement its emerging notions of judicial reticence and self-abnegation. This fundamental turnabout in judicial perspective is hardly coincidental, since it reflects the fulfillment of an oft-repeated campaign pledge of Richard Nixon, who in 1968 promised, if elected, to appoint so-called strict constructionists to the Court.' In a basic way his appointees have succeeded in modifying the activist stance that prevailed on the Court during much of the tenure of Earl Warren as Chief Justice. With notable exceptions in some areas, the new majority has a much more modest view of the judicial function within our democratic society.' Elements of his philosophy have emerged and been acted upon in such fields as individual rights (especially equal protection), access to the federal courts (for example, standing), and federal-state relations (for example, revivification of the eleventh amendment and resurrection of the doctrine of comity as limitations on federal judicial activity)." The overriding themes appear to include judicial self-restraint, reliance on and faith in the democratic process, skepticism about the wisdom and effectiveness of active judicial intervention in the resolution of basic societal disagreements," and a certain nervousness about continual confrontations between the Court--an institution perceived by many as undemocratic and counter-majoritarian-and popularly elected, and therefore politically accountable, legislative and executive officials.