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The conventional wisdom holds that the Supreme Court provides the final word as the Court tells the people what the Constitution commands. In interpreting uncertain constitutional text, however, the Court is not provided with a single answer but must, itself, make hard choices. Such choices by an unelected Court appear to conflict with the basic principle of majority rule by the people through their elected representatives in our democracy. Over time, through public debate, new arguments before the Court, legislation, new appointments to the Court, and constitutional amendments, however, the Court's prior judgements evolve, are distinguished or modified, and are even directly overturned. Viewed from this longer term perspective, the Court's supposedly final rulings can therefore be seen as an integral part of an ongoing national dialogue over the meaning of the Constitution. This understanding makes judicial review more consistent with our tradition of government by the people rather than by the Court. To explore this understanding, The Supreme Court and Judicial Choice develops a provisional approach to judicial review under which a surprisingly large number of judicial rulings would be subject to modification by ordinary legistlation enacted by Congress. Far from rendering the Court a powerless subject of Congress, this proposal would enhance the vital role of the Court in stimulating and shaping the ongoing dialogue with the people over the meaning of the Constitution.

The conventional wisdom holds that the Supreme Court provides the final word as the Court tells the people what the Constitution commands. In interpreting uncertain constitutional text, however, the Court is not provided with a single answer but must, itself, make hard choices. Such choices by an unelected Court appear to conflict with the basic principle of majority rule by the people through their elected representatives in our democracy. Over time, through public debate, new arguments before the Court, legislation, new appointments to the Court, and constitutional amendments, however, the Court's prior judgements evolve, are distinguished or modified, and are even directly overturned. Viewed from this longer term perspective, the Court's supposedly final rulings can therefore be seen as an integral part of an ongoing national dialogue over the meaning of the Constitution. This understanding makes judicial review more consistent with our tradition of government by the people rather than by the Court. To explore this understanding, The Supreme Court and Judicial Choice develops a provisional approach to judicial review under which a surprisingly large number of judicial rulings would be subject to modification by ordinary legistlation enacted by Congress. Far from rendering the Court a powerless subject of Congress, this proposal would enhance the vital role of the Court in stimulating and shaping the ongoing dialogue with the people over the meaning of the Constitution.

Employee drug testing is an invasive and controversial new social control policy that burst into the American work place during the war on drugs of the 1980s. Workers, judges, and politicians divided over whether it was an unnecessary and unconstitutional program of surveillance or an effective and appropriate new weapon in the anti-drug arsenal. When the dust had settled, the new technique was widely used and had been strongly approved by the United States Supreme Court. This raises the fundamental question: Why was the momentum behind testing so strong and the opposition to testing so ineffective? Drawing on theories of ideological hegemony and legal mobilization, John Gilliom begins the search for answers with an examination of how the imagery of a national drug crisis served as the legitimating context for the introduction of testing. Surveillance, Privacy, and the Law then moves beyond the specific history of testing and frames the new policy within a broader transformation of social control policy seen by students of political economy, society, and culture. The book cites survey research among skilled workers and analyzes court opinions to highlight the sharply polarized opinions in the workplaces and courthouses of America. Although federal court decisions show massive and impassioned disagreement among judges, the new conservative Supreme Court comes down squarely behind testing. Its ruling embraces surveillance technology, rejects arguments against testing, and undermines future opposition to policies of general surveillance. Surveillance, Privacy, and the Law portrays the apparent triumph of testing policies as a victory for the conservative law-and-order movement and a stark loss for the values of privacy and autonomy. As one episode in a broader move toward a surveillance society, the battle over employee drug testing raises disturbing questions about future struggles over revolutionary new means of surveillance and control. John Gilliom is Professor of Political Science, Ohio University.