Citation
Nicholas Stephanopoulos, The Anti-Carolene Court, 2019 Sup. Ct. Rev. 111.
Abstract
The famous fourth footnote of Carolene Products identified three categories of cases warranting heightened judicial scrutiny: laws restricting the political process, laws targeting discrete and insular minorities, and laws implicating specific constitutional provisions. For decades, the footnote served as a touchstone for constitutional adjudication involving democracy and minority rights. This Article argues that the current Supreme Court has inverted the Carolene framework — becoming the anti-Carolene Court, implacably hostile to efforts to vindicate democratic values. The Article documents the Court’s hostility across the domains the footnote identified: restrictions on the political process, discrete and insular minorities, and specific constitutional text. It then proposes a more democracy-protective jurisprudence responsive to the Court’s anti-Carolene turn.