Foreword: Antidiscrimination and Constitutional Accountability (What the Bork-Brennan Debate Ignores)
![handle is hein.journals/hlr105 and id is 100 raw text is: THE SUPREME COURT
1990 TERM
FOREWORD: ANTIDISCRIMINATION AND
CONSTITUTIONAL ACCOUNTABILITY
(WHAT THE BORK-BRENNAN DEBATE IGNORES)
Guido Calabresi
I. INTRODUCTION
TN recent years, critics have accused the Rehnquist Court of prac-
J.ticing 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 Rehn-
quist Court has eschewed traditional procedural principles of consti-
tutional adjudication, such as the principle that the Court should
decide cases on constitutional grounds only when absolutely neces-
sary.2 Critics have also attacked the Rehnquist Court for straining to
* Dean and Sterling Professor of Law, Yale Law School. In a much earlier version, some
of the ideas in this Foreword formed the core of the Alexander Meikeljohn Lecture, which I
delivered at Brown University on May 4, i989. Other parts were significant in lectures I gave
at the University of Alabama on the occasion of the centennial of Justice Hugo Black's birth,
at Emory Law School, the University of Georgia Law School, and the University of Bologna.
My colleagues at the Yale Law School made helpful suggestions and criticisms at a faculty
workshop at which some aspects of this Foreword were discussed. Frank Michelman of the
Harvard Law School read the whole manuscript and made many very useful comments. I am
very grateful to all of them, as I am to Jeffrey Rosen, Yale Law School class of 199i, and
Margo Schlanger, Yale Law School class of 1993, who helped with some of the footnotes. I
would particularly like to thank Daniel Egger, Yale Law School class of 1992, for his extraor-
dinary assistance with both text and footnotes. Finally, I have nothing but praise for the
courtesy, promptness, and assistance with style and substance given to me by the Editors of
the Harvard Law Review.
I See, e.g., Al Kamen, Liberals Uneasy over High Court Review of Discrimination Laws,
WASH. POST, May I, i988, at A4 (quoting Professor Philip Kurland as describing a Rehnquist
Court action as a suggestion of reactionary activism, judicial activism on the right); David A.
Kaplan, Good for the Left, Now Good for the Right, NEWSWEEK, July 8, 1991, at 20, 22
(quoting Professor A. E. Dick Howard as saying that [this majority is as willing to act as the
Warren court and Professor Walter Dellinger as remarking that [t]his court has abandoned
any pretense of neutrality).
2 See, e.g., Rust v. Sullivan, iII S. Ct. 1759, 1778 (199i) (Blackmun, J., dissenting)
(criticizing the majority for [c]asting aside established principles of statutory construction and
administrative jurisprudence by unnecessarily pass[ing] upon important questions of constitu-
tional law); infra pp. 141-45.](ViewImageLocal?handle=hein.journals/hlr105&div=15&collection=&method=preview&ext=.png&size=3)
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Foreword: Antidiscrimination and Constitutional Accountability (What the Bork-Brennan Debate Ignores)
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