From the book “ The Tempting Of America (1991) , By Robert Bork

…It is somewhat unclear whether the modern Court is more politicized than Courts of previous eras. Certainly it makes more political decisions each year than was true in any year in the nineteenth century, but that is largely due to the number of occasions for such decisions presented to it. Before the post-Civil War amendments, particularly the fourteenth amendment, the Court had little opportunity to impose rules on the states. The development of substantive content in the fourteenth amendment’s due process clause, and subsequently the incorporation of the Bill of Rights in that clause, enormously expanded the Court’s power over the states. It is conceivable, though unlikely, that, the Courts of the nineteenth century, given the opportunities that this legal structure presented, would have appeared as activist and political as do the Courts of the past five or six decades.

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