Introduction: The Invention of Courts

Abstract

LINDAGREENHOUSE, a Fellow of the American Academy since 1994 and a member of the Academy’s Council, is the Joseph Goldstein Lecturer in Law at Yale Law School. She covered the Supreme Court for The New York Times from 1978–2008 and continues to write a biweekly column on law as a contributing columnist for The New York Times website. Her publications include The U.S. Supreme Court: A Very Short Introduction (2012), Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Ruling (with Reva B. Siegel, 2010), and Becoming Justice Blackmun: Harry Black mun’s Supreme Court Journey (2005). This volume is both prequel and sequel. In 2008, Daedalus published an issue entitled “On Judicial Independence,” exploring from a variety of perspectives the de1⁄2nition of that term, as well as ageold and newly emergent threats to the ability of judges to do their work without undue constraint. Six years later, we both carry that story forward and shift the analytical frame to consider courts them selves: their past and ongoing evolution, and the work that a democracy can reasonably expect them to do. To write about courts is to write about political theory, about lawyering, about 1⁄2scal priorities, and about social welfare, as well as about courts’ dependence on and independence from the body politic. The subject evokes a great variety of conver sations, from the highly theoretical to the nitty gritty of service delivery for human needs in all their man ifestations. Discussions of courts, at least in the United States, bring lawyers rapidly into view, along with criminal defendants, civil litigants, administrative agencies, budgets, public 1⁄2nancing, and popular opinion. Courts exist in our imagination and in bricks and mortar, in the stories we tell ourselves about the society we hope to be and in our acknowledgment that in our aspiration for “justice for all,” we too often fall short. Our egalitarian ambitions for courts have grown over the years, perhaps outstripping our will to provide the means to ful1⁄2ll our promises. Across a shifting landscape, we assign courts an astonishing range of tasks while lacking consensus on whether