Knowledge And Decisions

When it is not deemed sufficient to simply glide from the need for “change” to an assumption that courts are the chosen vehicles of change, arguments are advanced that courts are either the best or the only governmental institutions capable of making a certain necessary social change. In this approach, evolving social morality replaces explicit constitutional rules, as the court “makes value choices under the broad provisions” of the Constitution,³⁴⁹ and this is deemed “a principled process”³⁵⁰ of judicial decision making because judges are not simply making subjective rulings or even deciding issues ad hoc,³⁵¹ but are following some general rule, one sensed in society rather than found in the explicit language of a constitution. Even a justice so identified with “judicial restraint” as Felix Frankfurter reflected this view. Although Justice Frankfurter rejected any idea that he would “sit like a kadi under a tree dispensing justice according to considerations of individual expediency,” he could still say that he was enforcing “society’s opinion” rather than his “private view” and that society’s opinion was the relevant standard “enjoined by the Constitution.”³⁵² To sense the evolving social morality, Frankfurter felt that a judge should have “antennae registering feeling and judgment beyond logical, let alone quantitative, proof.”³⁵³ In this vision of judicial restraint, as further expressed by Frankfurter’s former law clerk, Alexander Bickel, the court which is liberated from the explicit constraints of the written Constitution judicially restrains itself to be the mouthpiece of evolving social morality and makes “experiential judgment” on the state of society in making its rulings.³⁵⁴

It may seem strange that an institution deliberately insulated from the popular feedback which constrains the legislative and executive branches of government should choose to adopt that constraint for itself and to put it in place of the explicit constraints of the written Constitution. However, as in the case of the argument from precision or “change,” this is simply not quite ingenuous. The judicially-restrained court is not binding itself to respond to the general public at large, by any means. Although there is some talk that the Supreme Court “represents the national will against local particularism”³⁵⁵ the judiciary is more often spoken of by exponents of judicial activism as an “educational institution”³⁵⁶ a “defender of the faith”³⁵⁷ and “a leader of opinion, not a mere register of it.”³⁵⁸ In short, the court is to be in the vanguard of moral change, able to act when other institutions run by elected officials are constrained by an amorphous and somewhat tainted entity called political “reality,” which among other things, makes amending the Constitution difficult. What all these lofty and vague phrases boil down to is that the court can impose things that the voters don’t want and the Constitution does not require, but which are in vogue in circles to which the court responds. Paradoxically, these are called “democratic” things in terms of what people would, should, or ultimately will want, though perhaps “counter-majoritarian” at a given time.³⁵⁹ The court is to cut itself off from both the words of the past and the public beliefs of the present and be general (principled) rather than ad hoc in its decisions. Thus, this approach can, with statesmanlike balance, reject the notion of direct, arbitrary, ad hoc rule by courts,³⁶⁰ and the limited role of interpreting constitutional rules.

Perhaps the most telling commentary on this vision is that its most eloquent exponent, Alexander Bickel, turned against it after he saw it in action for a few years.³⁶¹ Instead of glorying in the courts’ freedom to shape events, the later Bickel found it “a moral duty” to “obey the manifest constitution, unless it is altered by the amendment process it itself provides for.”³⁶² Judicial amendment by “interpretation” and “educating” society were no longer envisioned, and the “benevolent quota” to which he had been sympathetic earlier³⁶³ was now seen as “a divider of society, a creator of castes” and “all the worse for its racial base.”³⁶⁴ The events of the Watergate era were merely “the last straws” of a “results” oriented way of thinking that went back to the Warren Court.³⁶⁵

Ironically, the much-disdained “original intentions” of the framers of the Constitution foresaw the problems which the twentieth-century sophisticates had to discover from hard experience. Thomas Jefferson regarded judicially activist judges as a “subtle corps of sappers and miners” of the foundations of the American form of government,³⁶⁶ who would concentrate power in the federal government, because that would “lay all things at their feet. ...”³⁶⁷

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