Chapter Two presents an abbreviated history of judicial review, divided into six time periods. It documents four previous revolutions in constitutional law. The history suggests that future revolutions are almost inevitable. The chapter highlights two broad trends that are supported by empirical data. First, the Supreme Court shifted its primary focus from private law to public law between the late nineteenth century and the mid twentieth century. Second, the type of law that the Court applies to decide public law cases has changed. In the nineteenth century, the Court applied a mix of international law, statutes, and common law – but rarely constitutional law – to decide public law cases. By applying types of law other than constitutional law, the Court was engaging in weak judicial review. Since the Warren Court era, the Court has consistently applied constitutional law in more than 50 percent of public law cases. Application of constitutional law typically involves strong judicial review. When the Court applies constitutional law to decide public law cases, Congress cannot override Supreme Court decisions involving major public policy controversies.

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.

In the summer of 1952, Ezra Pound told Guy Davenport that ‘the poet looks forward to what’s coming next in the poem’, as though the poem, not the poet, dictated the work. One way of interpreting this Delphic remark is to suppose that Pound meant pending events, whether in the poet’s head or out in the world, would determine the content of the later Cantos. Noel Stock called the late cantos ‘the diary of a mind’; therefore they inevitably comment on current events.