Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court (By Jesse H. Choper)
We have come to an important crossroad in constitutional law. Academic commentators are calling for a broad reexamination of traditional assumptions about the role that both the Constitution and Supreme Court can and should play in our society. Some critics of the Court complain that it takes too narrow a view of the Constitution, while others have argued that the court interprets it too broadly. Despite differences in perspective, most will no doubt agree with Professor Leff’s observation that “it is awfully hard to be a credible constitution thinker by treating the Constitution as irrelevant.” Perhaps it is time to look for new arguments to establish the relevance of constitutional law and the Court in American society in traditional terms or to establish new criteria by which relevance is to be determined.
The sense that constitutional law is entering a new phase is not necessarily confined to the scholarly community. Anyone familiar with recent developments in the Supreme Court is likely to conclude that the Court is uncertain of precisely what it and the Constitution stand for. Moreover, the recent Presidential election has made us aware of the imminent change in the composition of the Court and the likely disruption of whatever agreement that may exist among the Justices with respect to doing constitutional law.
Professor Choper’s recent book has made a substantial contribution to the prevailing notion that constitutional theory must enter a new phrase.
Saphire, Richard B.
"Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court (By Jesse H. Choper),"
University of Dayton Law Review: Vol. 6:
2, Article 13.
Available at: https://ecommons.udayton.edu/udlr/vol6/iss2/13
Richard B. Saphire is an Associate Professor of Law, University of Dayton School of Law. B.A., Ohio State University, 1967; J.D., Chase College of Law, 1971; LL.M., Harvard Law School, 1975.