One of the things progressive legal academics love to angst about is the relationship between minority rights and the courts. Sometimes, it seems like our analysis reflects little more than the changing political alignment of the judiciary. The Warren Court appears to make great strides in protecting marginalized communities from democratic predations, and so we produce deep tracts explaining why courts are important countermajoritarian bulwarks. Then we experience a significant conservative retrenchment during the Burger/Rehnquist/Roberts years, and the tenor of the scholarship changes -- it turns out that courts are poor vehicles for progressive social change. And now, with Democrats potentially gaining control over the judicial branch for the first time in a generation, the pendulum swings again: progressives are urged to abandon our "defensive crouch" and reassert a muscular left constitutionalism.
None of this seems to do much in the ways of explaining why courts are supposed to be systematically more sympathetic to outgroups compared to the political branches. One could argue that we got idiosyncratically lucky with the Warren Court, and have been misled ever since. The Warren Court, after all, did what it did in part because it turned out that the overseer of Japanese internment and a former Alabama klansman were willing to promote historically progressive racial policies. This does not seem like the sort of historical fortune likely to be replicated. There is something odd, it must be said, about starting with the problem of political marginalization and ending with the idea that we should delegate those issues to a institution that is whiter, maler, richer, and older than the American population writ large.