Washington Law Review


Archibald Cox


The new dimensions to which my title refers are of a different order; they are not substantive but institutional. That the Supreme Court has always played a partly political role—that it has always made a certain amount of public policy in some areas under the guise of interpreting the Constitution—is all too obvious. That it has usually felt partly bound by "law" is equally obvious to anyone who understands the self-discipline of the legal method. The question of emphasis always remains. How large or small is—or should be—the political element in judicial decisions? There also remains a second question. How much and what parts of the business of government should the judicial branch oversee, even to the point of conducting it? More particularly, what kinds of interests will move a court to intervene? Who may join in the action? What kinds of questions will the court decide? What kinds of remedies will it make available? The past quarter century seems to me to have brought dramatic changes not only in the weight of the political components of constitutional decisions but also in the nature, character, and extent of the judiciary's share of the overall business of government. Taken all together these changes give constitutional adjudication the new dimensions to which my title refers. The primary aim of this article is to describe the changes. Their true significance lies in their cumulative effect upon the nature of the judicial process and the effectiveness of judge-made constitutional law. Towards the end, I shall pose a number of questions about the cumulative effect of the changes upon the nature of the judicial process and support for constitutionalism.

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