The Supreme Court in the Era of Bifurcated Review I

Abstract

Volume 2 of this series devoted several chapters to the emergence of what it called “guardian review” on the Supreme Court, a posture in which justices acted as guardians of individual rights against restrictions by the state. This volume contains several chapters exploring the replacement of that posture with “bifurcated review,” featuring a deferential attitude toward some restriction of individual rights and aggressive scrutiny of others. This chapter describes the evolution from guardian to bifurcated review on the Court and matches it to changes in the Court’s internal decision-making protocols from the 1940s through to the 1970s.