Courts in Conversation

This essay, written for a symposium on Akhil Reed Amar’s The Words That Made Us, explores how the judiciary transformed from a barely audible to a vociferous participant in America’s constitutional conversation in the period covered by Amar’s book. The emergence of written constitutions with special democratic authority offered a judicially tractable source of limits on government power. Then, after the Federal Constitution went into effect, the early Supreme Court Justices made a set of critical institutional choices that both strengthened the judicial voice and made it distinct from the other branches: They separated themselves from the President and his cabinet, suppressed overt partisanship, and started to speak through unified and elaborately reasoned “opinions of the Court” that were disseminated in official reports. These changes, I argue, remain the backbone of the Court’s institutional identity, and enabled the Court to achieve the preeminence it now enjoys in our constitutional conversation