In his 1984 Sibley Lecture, Solicitor General of the United States Rex E. Lee defended the Supreme Court’s record in the 1983 Term against three criticisms: (1) the Court too often sided with the government “over the individual” and surrendered its role as “a protector of constitutional rights”; (2) the Court abandoned principled constitutional interpretation in favor of “cost-benefit’ analysis; and (3) as a result of the 1983 Term, “Americans are less free.” Although these criticisms are no doubt incomplete and overstated, and there is thus some force in the solicitor general’s defense, he ultimately fails to grasp the real significance of the 1983 Term: the Court has entered a new era—the era of aggressive majoritarianism.
My central point is this: on rare occasions, the Supreme Court fundamentally recasts its role in the American constitutional system. This has occurred at least three times this century. In the 1936 Term, the Court abandoned economic substantive due process and ushered in an era of judicial passivism designed to remove the Court from the center of political controversy. In the 1953 Term, the Court abandoned separate-but-equal and ushered in an era of judicial activism designed to strengthen the democratic process and protect the unrepresented from majoritarian abuse. In the 1969 Term, the Court experienced a dramatic change in personnel and ushered in an era of moderation in which it retained much of its activist style but lacked “the kind of clear-cut agenda” that had propelled it in the prior era. In the 1983 Term, the Court may have signaled a similarly historic shift in its constitutional role.