The Judicial Bookshelf DONALD GRIER STEPHENSON JR. As Chief Justice John G. Roberts, Jr. administered the oath of office on the west front of the Capitol on January 21, 2013, the ceremonial and public beginning1 of the 44th President’s second term called to mind instances—some old—some more recent, when the Justices have been called upon to judge the validity of policies central to what an administration may have deemed essential for the common good. Judicial attempts to stabilize a sometimes roiling democratic republic through the measured application of reasoned constitutional principle through adjudication has long been part of American government, but they have hardly been free of controversy. Friction persists in part because of the question of whether the Court facilitates or impedes democratic government. It is a question that arises in turn from the funda mental distinction between the functions and the authority ofRepresentatives and Senators in Congress, on the one hand, and of federal judges, on the other. Legislators enjoy a legitimacy for their choices that flows from election. Through the franchise, the people confer authority upon them to make laws, to give effect to the wishes and values of those whom they represent. When legislators do not, voters may then withdraw that authority and bestow it upon others. Federal judges, however, enjoy a legitimacy conferred at best only indirectly by election, by way of presidential nomination and confirmation by the Senate. Full legitimacy for what they do flows from the Constitution, as interpreted in the context of deciding cases, where results are explained through opinions. Hence, persuasion by reason has long been an essential element of the American legal system—indeed an extra-constitutional ex pectation for appropriate exercise of “the judicial Power” granted by Article III. Certainly, for federal judges who are effec tively appointed for life and even for those state appellate judges who are subject to periodic electoral checks, the judiciary in America is not supposed to exercise truly independent political authority. Instead, the theory, advanced long ago by both Alexander Hamilton and John Marshall, is that the judge is only giving effect to the people’s will, as embodied in a statute or a constitutional provision. So a judge will say 262 JOURNAL OF SUPREME COURT HISTORY that the Constitution requires a particular outcome, not that the judge believes the outcome is necessarily desirable. Nor does a judge justify a decision by saying that recent public opinion polls support it. Legislators may typically explain their votes that way, but judges should not. This distinction of course does not mean that the values ofjudges have no impact on the outcomes ofcases. Any close observer of the Supreme Court knows that values have always had a lot to do with outcomes. One recalls, after all, Max Lerner’s observation that “judicial decisions are not babies brought by constitutional storks.”2 However, the distinction is important in understanding how the judge’s role differs from the legislator’s role. Success as a jurist consists accordingly in more than choosing the “right” result. The correct result should also be a convincingly reasoned result. Nonetheless, the question of whether the Court facilitates or impedes democratic government led Yale University political scientist Robert Dahl more than a halfcentury ago to suggest that the “political views on the Court are never for long out of line with the views dominant among the lawmaking ma jorities of the United States.”3 Instead of playing a counter-majoritarian role, at odds with the popular mood and perhaps reflecting the dead hand of the past, the Court soon reverts, according to this view, to a legitimiz ing role in which the Justices place the stamp of approval on policies that once may have been deemed constitutionally suspect or unacceptable. Yet such a pattern of persistent law making majorities, reflecting the views ofone major party or the other, has not truly existed in recent years. Party control has tended to switch back and forth with the President sometimes facing a divided government situation, where the opposition party controls Congress, and particularly critical for the Bench, the Senate and with it the machinery of judicial confirmations. Indeed, since 1985, party control ofthe...