Freedom, Virtue, and the New Scholasticism:
The Supreme Court as Philosopher-Kings
ONCE again, as in the days of the New Deal, the Supreme Court is the center of a vigorous national debate. But the issues now are different from those which agitated the country two decades ago, and the participants have by and large reversed their roles. Then it was the liberals who led the attack against the Court, arguing that a tribunal vested with the power of judicial review was essentially undemocratic, for thus public opinion could be overridden by a body of men neither elected by nor responsible to it; that the Court was acting as a legislative as well as a judicial body, making as well as declaring law; and that it had generally used this legislative power in a reactionary way, to protect “property rights” rather than “human rights.” Now, however, it is the conservatives who are primarily discomfited, because the controversial issues before the Court, as Alan Westin has shown,* no longer concern matters of property but civil liberties and civil rights. The conservatives now argue that the Court, allegedly in the control of liberal Justices, is so concerned to protect individual liberties and civil rights that it neglects important dangers to our national security, such as Communist subversion, and also that it has impaired states’ rights in such areas as segregation.
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