Chillin'Competition

The US Supreme Court has been all over the news recently. Unfortunately, this was so because of the passing of Ruth Bader Ginsburg, a most remarkable figure whose reputation and achievements were admired outside the legal world and whose legacy will inspire many.

If it precisely because of legal minds like Ruth Bader Ginsburg that the US Supreme Court is, and has always been, a fascinating institution. As I was reflecting on her passing and the implications, I was immediately drawn to a book published earlier this year and which I read during the worst of the lockdown.

The book is called Democracy and Equality and is published by two renowned US constitutional law scholars. I very much recommend it if you feel like venturing outside competition law: it is particularly well written and accessible; more importantly, it is a thoughtful reflection of the role of courts in a democracy.

Democracy and Equality provides an overview of the landmark opinions of the so-called Warren Court (1953-1969), which advanced civil rights and liberties, as well as equality, probably like no other in the history of the US Supreme Court.

This is the Court that delivered Brown v Board of Education (on the segregation of public schools), Miranda v Arizona (on the right of suspects to remain silent and to be advised by an attorney), Reynolds v Sims (where it upheld the ‘one person, one vote’ principle) and NYT v Sullivan (on freedom of speech and my personal favourite in what it achieved in holding power to account and effectively ending segregation).

The book is particularly valuable, in any event, in that it uncovers the single, unifying vision of the Warren Court and its role in the institutional structure of which it is a part.

The authors convincingly explain, and the cases discussed show, that the members of the Warren Court understood that their role was to correct the inevitable flaws and inequities that come from majoritarian institutions. In the same vein, they interpreted the US Constitution as a device that provided protection for minorities against the proverbial tyranny of the majority.

Thus, if the Warren Court was ‘activist’ (a favourite word of its critics), it was so in a very precise way and for a purpose that was more noble than simply contributing to the growing polarisation surrounding us.

I know we are all busy, but enjoy the book if you can (it reads in an afternoon). And if it leaves you hungry for more, The Nine is another exceptional book that covers another crucial period of the Court.