Supreme Court Review

Article Title

The Anti-Carolene Court


Once upon a time, roughly in the middle of the twentieth century, Carolene Products’s famous footnote captured much of the Supreme Court’s constitutional decision making. Carolene included three key prescriptions. First, the Court should not strike down ordinary social and economic legislation: the sorts of laws the Court had routinely nullified in the preceding Lochner era. Second, the Court should block efforts by incumbent politicians to distort the political process in their favor. These efforts are a democratic malfunction—a breach of the majoritarian ideal—that the Court is well positioned to resolve. And third, the Court should also intervene when a minority group is consistently the loser of political battles. There’s no majoritarian problem in this scenario, but there is a violation of a different democratic value: pluralism, the idea that groups should endlessly make and break alliances as they compete over public policy, and no group should find itself perennially outside the winning coalition. It’s evident that the contemporary Court no longer heeds Carolene’s first directive. A Court that prevents states from restricting the possession of firearms, or that forbids Congress from mandating the purchase of health insurance under the Commerce Clause, isn’t a Court that’s willing to defer to most social and economic legislation. It’s equally plain that Carolene’s third pillar has crumbled. If it still stood, the Court would celebrate (or at least tolerate) laws that benefit politically weak minority groups, like affirmative action and school integration. But the Court subjects these policies to the strictest scrutiny and usually invalidates them, even though it’s implausible that America’s white majority is the victim of a pluralist failure.

Full text not available in ChicagoUnbound.