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Subject Area: Political Theory

The Supreme Court and the Law - Leonard P. Liggio, Literature of Liberty, January/March 1979, vol. 2, No. 1 [1979]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


The Supreme Court and the Law

Louis Lusky

  • Columbia University

By What Right? A Commentary on the Supreme Court's Power to Revise the Constitution. Charlottesville, Virginia: Michie Company, 1978.

Beginning this volume as an exoneration of the Court's activities since 1937, Professor Lusky gradually became convinced that the Court's record of achievement is significantly flawed and began to suspect that the justices of the Supreme Court have come to consider the Court to be above the law.

The catalyst decisions for Lusky were Roe v. Wade and Doe v. Bolton (the bellwether abortion cases announced on January 22, 1973), which signaled that the majority of the Court was ready to engage in freehand constitution-making to combat whatever they viewed as basic injustice in any field wherein they desired to intervene.

Reviewing representative cases following President Nixon's appointments discloses that at least two of three most recently appointed justices have been as willing as their senior colleagues to engage in constitution-making well outside the historic boundaries thought proper for the Court. Furthermore, the deaths of justices Black and Harlan have left the Court without a member highly sensitive to this judicial failure to make clear the constitutional limits of its own authority, with the possible exception of Justice Rehnquist.

By tracing the evolution of the concept and practice of judicial review, and its expansion beyond governmental power cases to definitive judicial review, Lusky suggests that “the Justices may have come to consider themselves to be masters of the Constitution rather than its servants.”