ABSTRACT
This chapter is not meant to provide a systematic history of the Supreme Court. There are a number of excellent studies that serve that purpose. Rather, the chapter illustrates five periods when the Supreme Court was an active, sometimes aggressive, policymaker. The Marshall Court began to interpret some of the ambiguous provisions of the Constitution. The Taney Court did not overturn many precedents, but it did modify doctrine. While Courts have wavered between exercising almost total judicial restraint and exercising judicial activism—even testing the limits of the Court's legitimacy and endangering its authority—most often, particular Courts have demonstrated activism in some areas and restraint in others. The Burger Court was an important bridge between the Warren and Rehnquist Courts. Three dimensions to the dilemma of the appropriate use of power will be considered: democratic theory, institutional constraints, and questions of judicial capacity.
