Precedent and Adjudication

Abstract

The following article is a difficult one. Its unusual style, its sophistication, and its multilayered patterns of thought make considerable demands of the reader. We have therefore taken the step, unique for the Journal, of providing a brief preface. Constitutional review by the Supreme Court has evoked two great crises of legitimacy in this century: once, as a reaction to invalidations of New Deal economic legislation in the 1930's, and again in response to the activist decisions of the Warren Court. These crises have generated important views concerning proper guidelines for the Court; roughly, such views have focused either on the development of general adjudicatory principles that are neutral in character or on the political and institutional role of the Court in relation to other institutions.