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Free Expression and Democracy in AmericaA History$
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Stephen M. Feldman

Print publication date: 2008

Print ISBN-13: 9780226240664

Published to Chicago Scholarship Online: March 2013

DOI: 10.7208/chicago/9780226240749.001.0001

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Pluralist Democracy and Judicial Review

Pluralist Democracy and Judicial Review

(p.349) Chapter 10 Pluralist Democracy and Judicial Review
Free Expression and Democracy in America
University of Chicago Press

As the nation emerged from World War I, the Supreme Court as well as the rest of the federal judiciary still exercised the power of judicial review in accordance with republican democracy. Courts determined whether governmental actions were either for the common good—and therefore permissible—or for partial or private interests—and therefore impermissible. Such judicial applications of republican democratic principles continued into the mid-1930s for three reasons. First, while the practice of pluralist democracy began to emerge during the early 1930s, the theory did not crystallize until later in the decade. Second, the institutional practice of adjudication, with its emphasis on stare decisis, has a natural reliance on the past, on precedents, on tradition. As such, one would expect the judiciary often to lag behind other institutions when change is afoot. Third, and related to the previous point, federal judges (including Supreme Court justices) receive lifetime appointments. In a time of critical transition, such as the 1930s, many judges would have matured, learned their professional norms, and been appointed to the federal bench during the prior regime. Such judges would be apt to continue applying the principles and doctrines they had become accustomed to earlier in their careers.

Keywords:   Supreme Court, republican democracy, government actions, federal judges

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