The "conservative" justices on the Roberts Court are often passionately restrained in their interpretation of the Constitution in precisely the cases in which a more muscular form of judicial review is most appropriate -- those involving discrimination against African Americans, women, Hispanics, religious dissenters, gays and lesbians, persons accused of crime, and denial of the right to vote to minorities and the poor. In these cases, our contemporary "conservative" justices often err on the side of upholding laws that even Philip Kurland would have found unconstitutional. This is, in my view, a sad state of affairs.
In the film 12 Angry Men, a lone man is able to convince his fellow jurors to switch their votes from guilty to not guilty. But in some places, the movie would have been much shorter and the result different -- because in those states, 10 out of 12 jurors voting guilty is enough to send a person away to prison for the rest of his life.
This week marks the 50th anniversary of the Supreme Court's decision in New York Times v. Sullivan, perhaps the most important First Amendment case in American history. In the words of the great First Amendment scholar Alexander Meiklejohn, the decision was "an occasion for dancing in the streets." Why was Sullivan so important?