Michel Foucault Quotes
My hypothesis is not so much that the court is the natural expression of popular justice, but rather that its historical function is to ensnare it, to control it and strangle it, by re-inscribing it within institutions which are typical of a state apparatus.
Foucault, Michel. "On Popular Justice: A Discussion with Maoists." Power/Knowledge: Selected Interviews and Other Writings, 1972-1977, edited by Colin Gordon, Pantheon Books, 1980, p. 1.
TR had a Supreme Court where a conservative block was in the majority and declared a number of his key reforms as unconstitutional. The same thing happened to FDR as well. Since Supreme Court justices had lifetime tenure most presidents and congresses have to deal with a court that has the political makeup and political philosophy of previous administrations by which they were appointed. Reform and change presidents tend to see the Supreme Court as obstructionist.
It is argued whether Scalia’s problem was that the Supreme Court was doing something new or radical or the country had changed. He had certainly lived through the greatest transformation of any society and culture on earth at a pace of change that far exceeds anything that has occurred before. Scalia is one who believes that the Constitution should not be interpreted in recognition of these changes, but should be immutable as it was written for the late 18th century. Most judges and legal scholars disagree and try to interpret the Constitution as the founders would have intended, knowing what we know, having the tools and powers we have, and facing the problems of the modern world. It represents a major legal and philosophical debate.
See Andrew Young for a later expression of this notion. 1st Earl of Beaconsfield
Paul-Michel Foucault was a French philosopher, historian of ideas, writer, political activist, and literary critic.