The Judicial Bookshelf

Abstract

The Judicial Bookshelf D. Grier Stephenson, Jr. Recognizedas a democraticprinciple binding on governors and the governed alike, respect for the law and the courts is “essential to the effective and equitable operation ofpopulargovernment.”1 Justice Arthur T. Vanderbilt of the New Jersey Supreme Court insisted nearly four decades ago: It is [in] the courts and not in the legis­ lature that our citizens primarily feel the keen, cutting edge of the law. If they have respect for the work of the courts, their respectfor law will survive the shortcomingsofevery other branch of government; but if they lose their respect for the work ofthe courts, their respect for law and order will vanish with it to the great detriment of society.2 Maintainingthis respect is a challenge forany political system. Where courts possess the power of judicial review, as in the United States, the challenge is intensified. Judges ofconstitutional courts enforce fundamental norms against poli­ cies preferred by other officials who are usually popularly elected or accountable in some way to those who are. Thus, an antinomy abides: the fair and even administration of justice versus the political dimension ofjustice. Law and Politics in the Supreme Court On the one hand there is the goal of“a govern­ ment of laws and not of men.”3 “Courts are the mere instruments of the law, and can will noth­ ing,”4 wrote ChiefJustice John Marshall in a selfeffacing denial. On the other hand there is an acknowledgment ofjudicial volition: thatjudges are not mere oracles and that courts affect the allocation of power. “We are under a Constitu­ tion, but the Constitution is what thejudges say it is. . . ,”5 asserted Charles Evans Hughes while governor ofNew York. “The prophecies ofwhat the courts will do in fact, and nothing more pretentious, arewhat I mean bythe law,” declared Oliver Wendell Holmes, Jr., while ajustice on the Chief Justice John Marshall wrote “Courts are the mere instruments of the law, and can will nothing.” JUDICIAL BOOKSHELF 91 Supreme Judicial Court of Massachusetts.6 “In law, also, men make a difference.... There is no inevitability in history except as men make it,”7 avowed Felix Frankfurter in the year before his appointment as Associate Justice. The American court system, and in particular the Supreme Court, is an agency of government while it is an institution ofthe law.8 The quandary for judges lies in adroitly combining the con­ straints that law imposes with the responsibilities that governing requires. One task or the other is hardly daunting. As judicial biographer Carl Brent Swisher observed on the eve ofthe second, and more activist, half of the Warren Court, a court “determines the facts involved in particular controversiesbroughtbefore it, relates the factsto the relevant law, settles the controversies in terms of the law, and more or less incidentally makes new law through the process ofdecision.” Com­ plexity arises, however, because the process de­ crees “a mode of informing the minds of the responsible officers—in this instancethejudges— which is unique and which must be kept in sharp focus in any attempt to estimate the capacity ofa judiciary to perform competitively in the gray areas which lie between it and institutions which are primarily legislative or executive.”9 It is in these “gray areas” thatthe Supreme Court and the rest of the judiciary acquire a political tint. Judicial scholars may routinely apply the ad­ jective “political” to the Court, but for some people the pairing is unseemly. This is because Americans frequently use the word “political” to refer to “partisan politics” (the struggle between political parties to control public offices and the nation’s destiny) or to decisions that result from illegal or otherwise improper influences. In both senses of the word “political” (partisan combat and corruption), Americans properly expect the federal courts to be “above politics.” (In states with elected judiciaries, by contrast, judges are frequently thrust into fund-raising and partisan combat by necessity.) Yetthe Supreme Court is nevertheless “politi­ cal” in a differentsense: the Justices help to shape public policy. Seen in this light, the Court has been political from practically the beginning. Manifestly, the Court is part ofthe political pro­ cess in at least five respects. The...