Upside Down Judicial Review Summary

In Corinne Barrett Lain, “Upside- Down Judicial Review”, she presents the idea of instead of upside down judicial review and how it has worked to transform the present courts of modern times. Lain argues her point of upside down Judicial review being used by the Supreme court in order to stray away from the majority's views of the other branches of government. Lain speaks of the idea of when widespread attitudes change on a certain issue of time, but the law hasn’t changed, there is a certain type of pressure that builds up that implements change. Nevertheless, the changing of the attitudes gives force of the law in the way that one's attitude, values and policy preferences start to show in larger society settings. However, the only job of the court is to respond to prevailing norms that are unable to be decided in another form of the government branches.

Lain focus on and critic’s two different historic cases of the 21st century that she suggests has used Upside-Down Judicial Review in the ruling.

The historic cases of Brown v. Board of Education and Furman V Georgia are some of the myriad examples of upside down judicial review. First, In Brown V Board, the Supreme Court single handily took on the Southern whites that were committed to segregation – and the justices were aware of this. Furthermore, the court decided to finally take on what other branches were scared to do. 1) The Supreme Court had a balance of public opinion on their side. 2) Brown invalidated a practice most states already rejected on their own. 3) Brown reflected deeper, tectonic changes in the race relations of the time. Nevertheless, Brown was an example of the Supreme Court “ Responding to, reflecting on, deep shifts in prevailing norms when the democratic process

wouldn’t.”
When it comes to changing democratic processes, Furman v Georgia is high up in the ranks. Furman v Georgia abolished the death penalty, invalidating 39 states and the federal government. Without a doubt, justices acted on behalf of their personal views, rejecting the popular decisions of the people. Upside down judicial review was used to fix a problem that the democratic process would be unable to fix. Lain states, “ The Supreme court may have gotten the application wrong, but it was clear in applying.”
For the most part, I believe that Lain has a logical idea and strongly supports the idea of Supreme Court justices using upside-down judicial review Despite its reputation of being unbiased to people and decisions, the court has clearly placed their beliefs, views, and rhetoric on decisions that they have made. When the founders create the court, they created a branch that would make changes difficult, even if they were backed by popular decisions. However, the Justices of the Supreme Court are products of their times. A lot has changed and many things differ from the creation of the Constitution to present times. The institution that is known to be textual readers, sometimes aren’t.
In the end, I believe that the text of the constitution is indeterminate and unable to be fully understood be any person in recent times. No matter the education, knowledge or research, no one can actually know the intentions of the Founding Fathers. The idea of not knowing the exact intentions creates the idea of an interpretive process in which some capacities are a reflection of the beliefs, traditions and attitudes of the given justices at a given place and time. However, I do believe the court has acted accordingly in the Brown v Board and Furman V Georgia case. Therefore, As Professor Peretti explained, “ The court lost the battle, but the people won the war.” Even though the court might of used their personal discretion, the people gained from it in the end, unknowingly.