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

43  R. EMERJ, Rio de Janeiro, v. 20, n. 2, p. 8 - 53, Maio/Agosto 2018  citizenship, thus rendering Dred Scott obsolete. The Court’s rulings invalidating New Deal legislation in 1935 and 1936 suffered a similar fate. 178 The immediate effect of these decisions was to produce a confrontation with the president that threatened the Court’s standing; Roosevelt’s Court-packing plan had the potential to destroy the Court as we know it. 179 Yet once the Justices shifted constitutional gears– constitutional historians continue to debate precisely when and why that shift occurred 180 –economic legislation quickly became immune from constitutional challenge. 181 The issue that had provoked the Court-packing episode was obsolete within just a couple of years. 182 Likewise, the decision in Korematsu v. United States , 183 sustaining the war-time internment of Japanese-Americans, already was generating considerable criticism by the end of the war, 184 and soon would come to be regarded as a quintessential failure of judicial nerve. 185 Yet, sin- ce the underlying issue simply was not relevant to peacetime Ame- rica, the decision did little lasting damage to the Court’s reputation. Other issues that generate Court decisions refuse to go away. Abor- tion and school prayer have remained at the center of public con- troversy for well over a quarter of a century since the Court first put them on its constitutional agenda. 186 Whether or not Roe and Engel have damaged the Court’s standing, it seems clear that controversial rulings on issues that have staying power pose a relatively greater threat to the Court’s reputation. 178 See supra notes __. 179 See Cushman, supra note __, at 13-14 (reporting statements by opponents of the plan); Joseph Alsop & Turner Catledge, The 168 Days 107, 114-15 (1938) (same). 180 Compare Cushman, supra note __ (denying that any fundamental shift occurred in 1937) with Bruce Ackerman, We the People: Transformations 366-68 (1998) (arguing there was a revolution in 1937). See also Friedman, supra note __, at 1982 (denying any “revolution” but conceding greater significance to Jones & Laughlin Steel than does Cushman). 181 See, e.g., Williamson v. Lee Optical, 348 U.S. 483 (1955); Railway Express Agency v. New York, 336 U.S. 106 (1949). 182 See generally Walton H. Hamilton & George D. Braden, The Special Competence of the Supreme Court, 50 Yale L.J. 1319, 1340-41 & n.82 (1941) (collecting cases). 183 323 U.S. 214 (1944). 184 See, e.g., Eugene V. Rostow, The Japanese American Cases–A Disaster, 54 Yale L. J. 489 (1945); Nanette Dembitz, Racial Discrimination and the Military Judgment: The Supreme Court’s Korematsu and Endo Decisions, 45 Colum. L. Rev. 175 (1945). 185 See, e.g., Judith A. Baer, Equality Under the Constitution: Reclaiming the Fourteenth Amendment 113, 149 (1983) (calling Korematsu “racist” and a “disgrace”); Michael Perry, The Constitution in the Courts: Law or Politics? 145 (1994) (calling the decision “almost universally discredited”); Laurence H. Tribe, In What Vision of the Constitution Must the Law be Color-Blind?, 20 J. Marshall L. Rev. 201, 202 (1986) (calling it “infamous”). 186 See, e.g., Stenberg v. Carhart, 530 U.S. 914 (2000) (abortion); Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000).