From Warren to Burger: The Rise and Decline of Substantive Equal Protection

Abstract

Substantive due process is the classic, if temporary, achievement of judicial activism. The Roosevelt Court destroyed it out of respect for the democratic processes. Mr. Justice Black's “incorporation” ploy was calculated to forestall backsliding by equating the Fourteenth Amendment with the Bill of Rights. But the Bill of Rights, after all, is quite old fashioned. It does not cover many matters deemed crucial in our day, e.g., poverty. To fill this “gap” the Warren Court used “equal protection” as “actively” as the pre-Roosevelt Court had used “due process.” Obviously inspired by the Black incorporation principle, the early Burger Court is doing to substantive equal protection what the Roosevelt Court did to substantive due process. A generation ago we called it a “return to the Constitution,” now it is called strict construction. If in time the full Nixon Court succumbs to the magic of power and imposes its ideals upon the nation, some of us may find embarrassment in our quondam efforts to convince ourselves that judicial activism (it used to be called judicial supremacy) is a proper handmaiden of democracy.