Today, a lawyer who appears before the Court in a case involving antitrust, taxation, labor law, or a similar question will find his case is typically dealt with in a straightforward, lawyerly manner. But when the Court is presented with a cultural issue in a constitutional context, the Court majority usually departs from the Constitution, often indeed from any conceivable meaning of the Constitution, in order to enact an item on the modern liberal agenda, generally resulting in the enshrinement of radical individual autonomy as part of the Bill of Rights. That is signified by the Court’s heavy use of the Due Process Clause’s guarantee of liberty. To some considerable degree, therefore, it seems valid to say that the current Court is dominated by a gentrified form of Sixties radicalism. I do not know how otherwise to account for the absolute mess of our current jurisprudence of individual rights.
Though the justices are properly criticized for abandoning the proper judicial function to follow intellectual class fecklessness, responsibility for the health of the legal order does not, of course, depend entirely upon judges or even upon a reckless intellectual class. Responsibility rests as well with the practicing bar, the law schools, and, ultimately, with the public that elects or delegates to representatives the election of judges. None of these is performing well or even tolerably. The problems, not all of which may be soluble, lie in the nature of legal practice, the way law is taught, the modern conception of legal scholarship, the ideological direction of the courts, the enormously enlarged area of authority and competence appropriated by those courts, the eagerness of factions to circumvent democracy by litigation, and, finally, public incomprehension of what is and is not in our Constitution and so the public’s inability to judge the judges.
