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simple history of the development of the court(s)
FIRST, Marbury v. Madison - Marshall says: this IS my job, Adams, get over it - establishing the principle of judicial review
SECOND thing to know: the US legal system in the nineteenth century (per Horwitz and Hurst mainly) is deeply affected by social, economic, and political transformations - leading to major changes in private law
THIRD: I would argue that public and constitutional law during this period is largely chilling - there are major cases obvi, but the big changes to legal formalism won't come about until the late nineteenth century
FOURTH: bam, reconstruction amendments, esp. good old #14 - deals a major blow to Progressives and social reformers, w/Lochner the court says "we're not gonna let legislatures do whatever they want" -substantive due process paired with narrow interpretation of congressional power
FIVE: Lochner = defense of conservative orthodoxy during a period of intense social and economic change in the US - these changes come to a head in the courts by the FDR era when the court finally boots pure formalism for a more realist approach to cases
SIX: Ollie Holmes helps bolster the legal realist movement, Lochner era basically ends with Parrish in 1937, the court becomes less dickish in certain cases, it's still bad, it's always been bad
SEVEN: Earl Warren, badass, man of our dreams - this court expanded civil rights, liberties and ultimately judicial power during this period
EIGHT: Burger - yup a real justice - basically continues the liberal-ish-ness of the warren court...but then BAM well known jackass Rehnquist takes control of the court in 1986 - and SCOTUS has basically been extra shitty since
NINE: this isn't about what happens after Rehnquist - just pointing out that other shit is happening in law too - and almost anything that happens to american social, economic, and political life from 1783-2020 has affected our legal system in some way - usually for the worse
TEN: substantive due process is bad, sucks to suck anthony kennedy
ELEVEN: didn't include this, but local courts are changing dramatically too, Chicago is a great example—until the early twentieth century most judges in Chitown were hacks, but then the municipal court=a flexible use of law, rejection of formalism, and an escape from common law
eleven ctd: this court in chicago meant that eventually law had an even deeper reach in people's lives
TWELVE: the biggest issue that legal historians and people today too deal with (imho) is how to explain what Kalman calls the "counter majoritarian difficulty" - why should nine unelected judges decide policy in a democratic-republic?
the answer? i don't know.
the answer? i don't know.
