Revista da EMERJ - V. 20 - N. 2 - Maio/Agosto - 2018

37  R. EMERJ, Rio de Janeiro, v. 20, n. 2, p. 8 - 53, Maio/Agosto 2018  ginia Board of Elections 131 (poll tax); Griswold v. Connecticut 132 (right to use contraceptives); Brown v. Mississippi 133 (coerced confessions); and Nixon v. Herndon 134 (white primary). On all these occasions, judicial invalidation of state legislation was relatively uncontroversial because national majorities agreed with the results of the Court’s constitutional interpretations. Small wonder that an institution that is able generally to mirror national opinion, while simultaneously perpetuating the no- ble myth that it heroically defends minority rights from majoritarian oppression, remains so popular with the American public. 135 Of course, some of the Court’s most famous constitutional ru- lings do not fit this paradigm. On these other, more exceptional occasions, roughly half the country agrees with the Court’s decision, while the other half disagrees. I believe this is a generally accurate description of Prigg v. Pennsylvania 136 (fugitive slave renditions); Dred Scott v. Sandford 137 (slavery in the territories); Brown v. Board of Edu- cation 138 (school desegregation); Furman v. Georgia 139 (death penalty); Roe v. Wade 140 (abortion); and Regents of the University of California v. Bakke 141 (affirmative action). While such decisions are certain to prove more controversial than the suppression-of-outliers variety, at least the Justices can count on the support of roughly fifty percent of the nation. On only a relative handful of occasions has the Court inter- preted the Constitution in ways opposed by a clear majority of the nation. This rather small category includes decisions invalidating 131 383 U.S. 663 (1966). 132 381 U.S. 479 (1965). 133 297 U.S. 278 (1936). 134 273 U.S. 536 (1927). I provide support for the claim that these decisions involved suppression of outlier state prac- tices in Michael J. Klarman, Rethinking the History of American Freedom, 42 Wm. & Mary L. Rev. 265, 279 nns.60-65 (2000) (book review). 135 Statements subscribing to this myth are collected in Michael J. Klarman, Rethinking the Civil Rights and Civil Liber- ties Revolutions, 82 Va. L. Rev. 1, 1-3 & nns. 1-14 (1996). For speculation on why the myth continues to hold sway, see id . at 18-31. 136 41 U.S. (16 Pet.) 539 (1842). 137 60 U.S. (19 How.) 393 (1857). 138 347 U.S. 483 (1954). 139 408 U.S. 238 (1972). 140 410 U.S. 113 (1973). 141 438 U.S. 265 (1978).