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Introduction
CHRISTOPHER WOLFE
At the same time the candid citizen must confess that if the policy of the
government, upon vital questions, affecting the whole people, is to be
irrevocably fixed by decisions of the Supreme Court, the instant they are
made, in ordinary litigation between parties, in personal actions, the
people will have ceased, to be their own rulers, having, to that extent,
practically resigned their government, into the hands of that eminent
tribunal.
-Abraham Lincoln, First Inaugural Address
IN THE PAST generation, an abundance of scholarship has clearly described the
profound transformation in the role of the Supreme Court (and the judiciary in
general) in American public life. While the Court has always played a
significant role in our political system, it has not always wielded the broad
policymaking power it regularly exercises today.
The scope and character of judicial power today is fundamentally inconsistent
with the separation of powers embodied by the American founders in our
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