For any one of these aspects of the life of Louis Brandeis -- lawyer, scholar, justice -- we would remember him today as a figure of insight, brilliance, creativity, and moral courage. The combination renders him an extraordinary figure in the practice of law, legal scholarship, judicial craftsmanship and jurisprudence, and civic activism on both a national and international scale.
Perhaps nothing has damaged the reputation of "substantive due process" more than that doctrine's association with Dred Scott v. Sandford (1857) -- the infamous decision holding that Congress lacked the power to ban slavery in federal territories and blacks had no rights under the Constitution that whites were bound to respect.
As we look towards the very real possibility that the next President of the United States will have an opportunity to nominate several Supreme Court justices, it is critically important to focus attention on a judicial virtue that has been neglected of late: Grit, that is, firmness of mind in the face of adversity.
In a word, no. The judiciary is not an exceptional, deviant institution in an otherwise pure democracy. The Constitution is pervasively countermajoritarian. It protects Americans against majority tyranny by providing that the government may act only when it has the authority to do so and by explicitly protecting individual rights.
The Kim Davis situation raises interesting questions about the meaning and practical effect of the freedom of religion. Although, for reasons that I will explain, the issue today is one of public policy, rather than constitutional law, the evolution of constitutional principles in this realm is illuminating.
The Supreme Court has ended the most blatant forms of gerrymandering and required legislative districts at both the state and federal level to be equal in composition within each state. The Court's rulings have been labeled "one person, one-vote," and the general assumption has been that, in dividing up each house by districts, the denominator has been the total population of the state.