Complaints about the Supreme Court’s power are almost as old as the Constitution, but they have more merit now than ever. According to calculations by the Harvard law professor Jed Shugerman, the Court has gone from overturning roughly one state law every two years in the pre-Civil War era, to roughly four a year in the later 1800’s, to over 10 a year in the last half-century. So too with federal law: Prior to 1954, the Court had struck down just 77 federal statutes in a century-and-a-half of jurisprudence; in the 50-odd years since, it’s overturned more than 80. Under Chief Justice William H. Rehnquist, the Court invalidated federal statutes at an unprecedented rate — and by the barest of majorities, in many cases. In one eight-year period, the University of Michigan’s Evan Caminker has noted, the Court invalidated 16 Congressional statutes by a 5-to-4 vote, something that had happened just 25 times in the previous two centuries.Great gobs of goo, boy. An increase in the number of states (13 to 50, if we must remind you, & it seems we must) & population growth & movement would be a good start to explaining all that. (The first Google™ hit has everything we need to say.) Total population in 1790 was 3,929,214, the nation was 5.1% urban & 94.9% rural. By 2000, we were 291,421,906 lost souls, 81.0 % of whom congregated in cities, while 19.0% clung to the old ways.
Consider also the rise of industrialism (Heard of that, Ross?) vast fortunes being made & lost, increased legislation (Some say that the development of air conditioning caused the ruination of the nation, as it allowed those pesky lawmakers to stay in Washington, D. C. all yr., doubling their chances to mess things up. Also: California's capital, Sacramento, which is hot & humid much of the yr. Look how effed we are.) & X thousand other factors that have effected legal & court activity. Ya think? As to five to four decisions, the electorate has been fairly evenly polarized until the recent election. A few more presidents somewhat to the left of Attila the Hun, or Pat Buchanan, & we'll probably be seeing many more seven to two or better decisions, as the hicks & traditionalists continue to marginalize themselves, & are replaced by cosmopolitan sophisticates.
[Web logger regains consciousness, looks around, stunned.]
Americans? Becoming cosmopolitan & so forth? Almost as amazing a pipe dream as Douthat's odd reverie.
Hell, we can't even label him a reactionary, because he doesn't admit (realize?) that anything has happened to react against since America changed bosses in 1776. More amusing than Kristol in that respect. What else will he share w/ us? Hurry, Monday.
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