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Felix Frankfurter's Revenge? A Democracy Built by Judges

Module by: UCI OpenCourseWare. E-mail the author

Summary: Beginning with its landmark decision in Baker v. Carr (1962), the Supreme Court has been actively involved in shaping American democracy for almost 50 years. In his dissent, Justice Felix Frankfurter warned we would rue the day we allowed judges, acting as amateur political scientists, to have the final word on the functioning of American democracy. Enough time has passed to test Justice Frankfurter's hypothesis. Do cases like Bush v. Gore (2000), where five Justices prevented the counting of Florida's votes in the 2000 presidential election, and Citizens United v. Federal Election Commission (2010), where five justices turned American democracy over to corporate lobbyists, mean that Frankfurter was right? Professor Burt Neuborne is the Inez Milholland Professor of Civil Liberties at New York University School of Law and the Legal Director of the Brennan Center for Justice at NYU School of Law. He focuses his research on the operation of the democratic process.

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