A Postscript for Charles Black: The Supreme Court and Race in the Progressive Era

Abstract

Charles Black's work in constitutional law is,1 like the "slow politics of the text"2 of the great Document itself, a statement of fundamental truths about our condition and aspirations that often takes a while to set in. As Harry Wellington has noted, few people had the sense to see The People and the Court3 when published in 1960 for what it should with deliberate speed have become: the dominant influence on my generation of constitu? tional lawyers' efforts to see the problem of judicial review beyond the shadows of the New Deal and the debacle of FDR's Court-Packing Plan. The book has, along with related works such as Decision According to Law4 constituted our era's main answer to the perennial anxiety that ju? dicial review is a usurpation of democratic powers vested in the legislative and executive branches. Black has also been our era's main exponent of the related truth so hard for many to swallow: that courts have in fact and are invited by the "democratic branches" to have large powers for social change, powers that grow rather than dissipate with sensible, principled and high-minded use. At the same time, Black's approach is rooted in the insistence that judicial review is an exercise of law and not of fiat; no one is more withering about those who would turn to courts for a fix anytime the political processes prove deaf, slow or inconvenient. Indeed, Black's view that constitutional law must be rooted in principle has been the basis for one of his most important insights about judicial review, that its prime importance lies not in its checking function but rather in its capacity to give legitimacy to the exercise of governmental power.