The braking function of the courts

I agree with Scott that “the courts will not save us.” To Scott’s question “has the Supreme Court ever served as a bulwark of the Constitution or legal nicety when the chips were down,” some might point to Brown v. Board Education. But to do so overlooks two points.

First, the Brown decision corrected an earlier decision, Plessy v. Ferguson, that the Court had rendered almost 60 years earlier. In a sense, the Court saved us from the Court.

Second, Brown was at most ten years ahead of its time. If it sped up school integration in the North, it did so by only a few years. In the South, it met with massive resistance and may not have sped up integration at all.

However, although the courts will not save us, they can act as a brake on what Woodrow Wilson called “the spirit of the Age.” For example, the Roberts Court in its decisions on campaign finance reform has applied the brakes to the “spirit” of limiting the free speech rights of those by whom “the Age” would like to be subsidized. The Roberts Court has also reined in to some extent racial discrimination against whites which, though not yet the spirit of the age, is the product of a powerful alliance of elites, opportunists, and a coalition of minority groups.

By serving this braking function, the courts can give “the Age” time to come to its senses. If this doesn’t happen, the courts will be swept away by the prevailing spirit.

This, I fear, is what’s in store for America.

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