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seen in the context of the destruction of law in Europe. For many,
there was no longer any political point to undermining respect for
the judiciary. And, as the judiciary became a partner in implement–
ing the winning coalition's program, the opposite became true .
The older liberal's faith in the primacy of legislative institu–
tions, typified by Felix Frankfurter, became identified as conser–
vative. Today, political liberals tend to support an active judiciary,
while conservatives (or neoconservatives) are more likely to be found
in opposition. Thus, for example, in
The Public Interest
in 1976,
Nathan Glazer added a term to the American political lexion when
he asked the rhetorical question "Towards an Imperial Judiciary?"
Glazer pointed to the sweeping judicial interventions of the past two
decades, in areas ranging from the public schools to the operation of
state prisons and hospitals to the drawing of electoral boundary
lines. "[A] free people feels itself increasingly under the arbitrary
rule of unreachable authorities," asserted Glazer, "and that cannot
be good for the future of the state ."
Nor is the disquiet about the contemporary judiciary confined
to one end of the political spectrum. The most widely reviewed book
about constitutional law in the past twenty years is undoubtedly
Democracy and Distrust,
by John Hart Ely, now Dean of the Stanford
Law School.
It
is a sign of the flux in current legal thought that Ely
both admiringly dedicates his book to Chief Justice Warren, for
whom he had clerked, and delivers a full-scale attack on the premise
that the Supreme Court has a mandate to discover and impose "fun–
damental rights" on an unwilling populace.
Ely defends the Warren Court by emphasizing that most of its
pathbreaking decisions were, in fact, democracy enhancing, insofar
as they broadened the access of individuals to the electoral process or
safeguarded their opportunities to participate vigorously in political
debates.
He believes, as his title indicates, that democratic decisions lose
their normal entitlement to judicial respect when there is a good
reason to distrust the willingness of the majorities to give fundamen–
tal respect to the interests of losing minorities, as has historically
been true in regard to white America's treatment of blacks.
It
is not
that the latter have a right to win; rather, they must at least have a
realistic chance to participate effectively in the pluralistic bargaining
process, so that losses are not cumulatively disabling and are some–
times counterbalanced by wins .
