Constitutional conservatism: the role of the Supreme Court in American democracy

• Department of Law

The Law, Rationalism, and Complexity Working Group and the Constitutional Law and Politics Working Group are organising a discussion with Professor Anthony Kronman

The federal judiciary is the least democratic branch of the American government. Federal judges are unelected and serve for life. The Supreme Court of the United States sit at the top of the federal judiciary. It wields immense powers. The greatest of these is the power to declare unconstitutional laws otherwise properly enacted by democratic assemblies, state and federal. What justifies the Court's use of this power in a system of government based on democratic principles? Should the power be exercised broadly or narrowly? Constitutional conservatives say narrowly. For more than a half-century, constitutional conservatism in America has been associated with a school of thought commonly referred to as "originalism"—the belief that the Constitution ought to be interpreted according to the widely-understood public meaning of its language at the time it was adopted. But though the Supreme Court is and ought to be a conservative institution, originalism is a poor explanation of why. A better one, inspired not by John Locke's idea of consent but by Edmund Burke's instead, was proposed and powerfully defended by Alexander Bickel (1924-1974), the greatest constitutional lawyer of his generation. There is reason to think that the Supreme Court today is moving in the direction he urged.

Anthony T. Kronman is Sterling Professor of Law at Yale Law School. He was appointed to this position in 2004. Professor Kronman served as dean of the Yale Law School from 1994 to 2004. He joined the Yale faculty in 1978 after teaching for two years at the University of Chicago School of Law and for one year at the University of Minnesota Law School. His teaching areas include constitutional law, contracts, legal philosophy and law and religion. He also teaches philosophy, literature and history and politics in the Directed Studies Program in Yale College. Professor Kronman is the author or co-author of many books and articles on various scholarly and other subjects. His most recent book, True Conservatism (2025), defends the humane character of conservative values against both progressive and reactionary distortions. After Disbelief (2022) explores the meaning of God in an age of disenchantment