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Role of the Supreme Court

Although these books differ substantially in their approaches to constitutional analysis and in their conceptions of the Supreme Court's role in the American system of government, they were commonly inspired, like much recent scholarly criticism of the Supreme Court, by profound dissatisfaction with certain judicial decisions crafted during the tenure of Chief Justice Earl Warren. Richard Y. Funston, a political scientist, has written a general commentary on the work of the contemporary Supreme Court which he finds seriously deficient for its general lack of principled decision-making. Raoul Berger, a lawyer and former senior fellow in American legal history at Harvard University, challenges the Court's use of the Fourteenth Amendment as a general license to incorporate notions of liberty and equality into the Constitution at variance with the original understanding of the framers. Professor Funston's book seeks primarily to examine "the continuities and discontinuities in the decision-making of the Warren and Burger Courts" (p. xi). Its ultimate purpose is to assess the claim that the Supreme Court under Chief Justice Burger has mounted a "constitutional counterrevolution" designed to topple the imposing edifice of constitutional doctrine constructed under Warren's stewardship. But the book is more than a comparison of constitutional doctrine. It also considers the quality and propriety of Supreme Court decisions in selected areas of constitutional law, mainly legislative apportionment, school desegregation, and defendants' rights, together with shorter treatments of cases dealing with obscenity, church-state relations, and wealth-based discrimination. Funston's final objective is to introduce lay readers, his primary audience, to recent scholarly criticism of the Supreme Court. But it needs to be added that the scholarly criticism the author tries to synthesize for the benefit of his readers is coupled with his personal appraisal that generally portrays the jurisprudence of the Warren Court in less flattering colors than that of the Burger Court.