The Courts, the Elections, and the People

Among many liberals and leftists, the deepest worry generated by Reagan’s victory is the thought of the Supreme Court justices he is likely to appoint. That seems to me a misplaced worry, but it does reflect the enormous importance the Court has come to have in our political process and the generally progressive role it has played since the 1950s. For three decades now, the federal courts have been the dominant agency for social change in the United States, far outdistancing in both zeal and effectiveness the Congress, the parties, the unions, interest groups of all kinds. And there, I think, is a deeper cause for worry. For judicial activism on this scale stands at some remove from democratic politics, and whatever its immediate effects, it doesn’t work over the long haul to strengthen democratic institutions. Indeed, Reagan’s victory is as much a consequence of judicial activism as it is a threat to the existence of a “progressive” Supreme Court.

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