Judicial Power and Modest Republicanism

Abstract

THERE IS SOMETHING REVEALING ABOUT THE BUILDINGS that have housed the Supreme Court. At its inception in 1789, the Court, like the other branches of the national government, was in search of an institutional place that it could call home. The Court’s justices spent most of their time in its first few years circuit-riding. When the nation’s capital moved to Philadelphia, the justices heard cases in Old City Hall, a modest building adjacent to Independence Hall. When the capital moved to its permanent place in Washington, DC, the Capitol building included a small court room in which the justices did their public work. It was not until 1935 that the Court moved into what some have called a marble temple, a building of grand scale and opulence. As the Court has increased the scale of its institutional place, it has also increased its power. The branch of government that Alexander Hamilton called “the least dangerous” has risen to a position of prominence in the American political system. Over the past 75 years, few public policy decisions have escaped the Court’s influence. The point is illustrated by a flood of judicial decisions pertaining to the incorporation of the national Bill of Rights, criminal rights, privacy rights, economic regulation, civil rights, reapportionment, freedom of speech, religious freedom and establishment, and federalism. This is by no means an exhaustive list.