The Supreme Court has assumed a very important policy role in the United States government as a result of the philosophy underlying the role of law in the United States and as a result of its constitutional role in government. The framers of the Constitution opted for a majority rule government, limited by protection of minority rights. This was meant to prevent tyranny by both the minority and the majority. In order to achieve this goal, the law must be obeyed without exception. Only the rule of law can result in liberty because it is the cement of a free society. This means that dissenters to the majority rule must also accept dissent to their dissent.
The Constitution gave the role of arbiter to the Supreme Court. The framers settled on the idea that the best arbiter of what is and is not constitutional would be the judiciary, for this would be a natural role for that body. In order to exercise this role, the Court needed the power of judicial review, or the ability to hold a law or action unconstitutional and unenforceable. Judicial review was not a power enumerated in the Constitution. However, it was a traditional power of the judiciary and the Court spelled it out in Marbury v. Madison. After Marbury, the debate over the power of judicial review vanished from the political scene.
The importance of the rule of law and the role of the Court in determining what comes within the rule of law has meant that the Court has an almost preeminent role in establishing governmental policy in certain areas. In particular, it is the Court which has elevated the status of the preservation of basic human freedoms to its current level. As will be seen in the following paragraphs, most of the laws invalidated by the Court as unconstitutional were struck down because they infringed upon one or more personal liberties. This trend accelerated during the Twentieth Century and has not slowed down. In contrast, the Court has sh...