Knowledge And Decisions

To some parties the costs of litigation are not conveyed at all, but are paid by the taxpayers, as in most criminal cases, where trial lawyers, appeals and prison law libraries in which to prepare appeals are at taxpayer expense. The more deadly costs of having criminals at large while waiting trial or appeal are also paid by the public. All these costs have been increased within recent decades by court decisions. Lawyers, of course, do not pay costs but instead reap benefits as the law becomes more intricate and time-consuming — and lawyers have in fact opposed attempts at simplification, such as “no-fault” automobile insurance. Lawyers’ benefits have increased in recent years as payments from clients have been supplemented by payments from others — not only taxpayers but also in institutional arrangements popularly defined by their hoped-for results as “public interest” law firms, supported by donors to “causes.” Insofar as the tax money is payable only for particular kinds of cases and the donors have a special focus — as with the “environmentalists” or contributors to the NAACP — then lawyers and legal institutions paid by third parties have every incentive to pursue such cases well past the point of diminishing returns or even negative returns to society at large.

Because the American judicial system of trial courts and appellate courts reaches an apex in the Supreme Court of the United States, the trends there are crucial for the behavior of the whole legal system. Within the past three decades — and especially in the controversial “Warren Court” era — there has been an expansion of the issues which the Supreme Court will adjudicate, and of the extent to which the court will go beyond defining the boundaries of other institutions’ discretion to reviewing the specific decisions made. Some degree of this is inherent in any appellate court’s functioning — a guilty verdict by a jury in a courtroom surrounded by a raging lynch mob cannot be allowed to stand merely because formal procedure was followed — but neither are appellate courts supposed to re-try issues rather than determine the constitutionality of trials and legislation. Otherwise, in the words of an appellate judge, “Law becomes the subjective preference of the reviewing court.”⁴

The U.S. Supreme Court was increasingly surrounded by controversy after Earl Warren became its Chief Justice in 1953. In the early stages of these controversies, those who accused the court of going beyond the legitimate bounds of constitutional interpretation into the dangerous area of judicial policy making tended to be those opposed to the particular social or political substance of the decisions made, while those who defended the court tended to be those in favor of the social and political impacts achieved or expected. It is unnecessary at this point to enter the specifics of these early controversies. As the Supreme Court continued along a path that involved increased judicial activism at all levels and in a variety of issues — lower courts running school systems, ordering prisons to be built, or even ordering a state legislature to pass a tax bill — the nature of the defense of the Court also began to change. Many of those in favor of the social or political results of Supreme Court decisions began to question whether there was any legal or constitutional basis for those decisions. Some argued that a constitutional case could be made for the decisions, though the court had not effectively made it.⁵ Others lamented that we had simply reached judicial policy making.⁶ Still others welcomed the judicial activism and lamented only its concealment — the “masking” of “decisions on the merits” and the court’s use of legal formalisms to “hide the reasoning behind its decision.”⁷ According to this line of thought, the court should not be restricted to the narrow role of interpreting the Constitution as a set of rules but should aspire to the role of applying the Constitution as a set of “values.”⁸ In short, both friend and foe alike came ultimately to see the Supreme Court as going beyond the previous bounds of constitutional interpretation, and into the realm of judicial policy making.

Trends in American legal institutions will be considered in four broad areas, those dealing with (1) administrative law-making, (2) free speech, (3) race, and (4) crime.

ADMINISTRATIVE AGENCIES