John Rawls and the Supreme Court : a study in continuity and change.




Foss, Jerome C.

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In his influential book A Theory of Justice, John Rawls indicates his approval of an independent judiciary and judicial review for stabilizing a just regime. His later works, particularly Political Liberalism, place increased emphasis upon the Court for bringing about and securing his realistic-utopian vision of a constitutional democracy. This is highlighted by his calling the Court the exemplar of public reason; it is to take the institutional lead in re-founding the U.S. Constitution upon an overlapping consensus on issues of public morality based upon a liberal theory of justice. Democratic theorists have argued that Rawls's version of constitutionalism is an undemocratic means of protecting democratic principles, to which Rawls responds that the initial role of assertion given to the Court can eventually be replaced by a more passive role once the overlapping consensus is adequately established. I argue that Rawls reverses the traditional understanding of change being a necessary component of continuity. He allows continuity for the sake of implementing change, a strategy that ultimately undermines the stable constitutional government he claims to be seeking.