Every generation, it seems, has its paradigm-defining Supreme Court case: a decision (or series of decisions) that determines the jurisprudential ethos and frames the judicial, political, and academic debate for the next quarter century or so. A landmark case of this sort also marks an ending, substantially revising the judicial ethos of the earlier paradigm-defining, debate-framing case.
In the early twentieth century, it was Lochner v. New York (1905), the case that gave its name to an era of “substantive due process” judicial activism directed against government economic regulation. That approach gave way in the mid-1930s to New Deal–era cases repudiating Lochner and deferring broadly to legislative choices. That paradigm in turn yielded to Brown v. Board of Education in 1954, the defining case of the Warren Court. Brown marked the arrival of a certain form of judicial activism. Its obviously just result erased long-standing erroneous precedent and upended entrenched social practices with dispatch—a pattern followed in many other Warren Court decisions in the years following. Brown was right as a matter of original meaning, yet the Court’s reasoning did not rely on legal text and history, which the Court found ambiguous. Instead, it drew on sociological studies and the Court’s sense of justice.
