Public Law & Legal Theory
Constitutional interpretation, as it is usually conceived, looks to the past—to an old text, to history, to precedent, to tradition—in an effort to limit political majorities. But over the last generation or so, a different approach to the Constitution has emerged. That approach, which might be called modernization, tries to anticipate trends in public opinion instead of taking lessons from the past; and a modernizing court, instead of facing down popular majorities, yields when it finds out that it has misgauged public opinion. This modernizing approach has characterized the Supreme Court’s recent work in many disparate areas, including, among others, the Cruel and Unusual Punishment Clause of the Eighth Amendment and the limits on sex discrimination imposed by the Equal Protection Clause. Perhaps most interesting, the substantive due process decisions of the last forty years are modernizing decisions, unlike the pre–New Deal substantive due process decisions to which they are often, mistakenly, compared. Modernization is an appealing approach in many ways. Among other things, it holds out the hope of more easily reconciling judicial review with democracy. But modernization also raises serious questions. There are questions of institutional competence— anticipating trends in public opinion sounds like a politician’s job, not a court’s—although there may be less to this objection than meets the eye. Perhaps the more important objections are that modernization may distort the political process, and it may cause courts to be too willing to accommodate what they perceive as the demands of popular opinion, at the expense of a principled judicial role.
David A. Strauss, "The Modernizing Mission of Judicial Review," University of Chicago Public Law & Legal Theory Working Paper, No. 271 (2009).