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2 - Historical Overview of Constitutional Adjudication by the Supreme Court

Published online by Cambridge University Press:  21 August 2025

Richard H. Fallon Jr.
Affiliation:
Harvard Law School, Massachusetts
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Summary

This chapter surveys the Supreme Court’s evolving role and interpretive approaches during five historical eras leading up to the present one. During the chief justiceship of John Marshall (1801–35), the Court rendered important decisions and issued expansive interpretations of judicial power and national legislative authority that today are viewed as cornerstones of the constitutional order. The succeeding era under Chief Justice Roger Taney (1836–64) brought the fiasco of Dred Scott v. Sandford (1857), which held that Congress had no power to regulate slavery in the territories, and the erosion of judicial authority during the Civil War. During the Lochner era (1865–1937), the Court recoiled from enforcing Reconstruction Amendments that had enshrined rights of racial minorities while simultaneously taking aggressive steps to shield businesses from regulatory legislation. The ensuing era (1937–69) began with the collapse of judicial resistance to economic regulatory legislation during the New Deal and continued as the Court under the leadership of Earl Warren expanded the rights of racial and other minorities. During the post-Warren period (1969–2016), the Court, like the country, turned to the right. Nonetheless, many liberal decisions endured, and the Court upheld abortion rights, permitted affirmative action, and established a right to gay marriage.

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Type
Chapter
Information
The Changing Constitution
Constitutional Law in the Trump-Era Supreme Court
, pp. 35 - 56
Publisher: Cambridge University Press
Print publication year: 2025

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