Forward: Antidiscrimination and Constitutional Accountability (What the Bork-Brennan Debate Ignores), The Supreme Court 1990 Term

Abstract

In recent years, critics have accused the Rehnquist Court of practicing a politically conservative version of the very judicial activism for which supporters of the current Court often attack the Warren Court. These critics have pointed to instances in which the Rehnquist Court has eschewed traditional procedural principles of constitutional adjudication, such as the principle that the Court should decide cases on constitutional grounds only when absolutely necessary. Critics have also attacked the Rehnquist Court for straining to give the Constitution a broad, substantive reading in order to reach political results. Although I wholeheartedly agree with these criticisms, this Foreword focuses on a more general failure of the Rehnquist Court's jurisprudence, one that has not received much popular or scholarly attention: the Court's disregard for two traditional approaches to judicial review that often more effectively protect fundamental rights—whatever their content—than currently prevailing approaches. The past Term was no exception.