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But should the legislatures pass sweeping or innovative measures, will the Supreme Court go to the activist conservative extreme, striking down the new laws as unconstitutional—as it did, for example, with much New Deal legislation in the 1930s? Last year Burger and Blackmun voted to invalidate Congress's extension of voting rights to 18-year-olds before the constitutional amendment had passed. Even so, many students of the court detect an air of passivity in the new alignment and this suggests a seeming paradox: the court may not actively resist legislative initiatives.
In fact, the practical impact of the Nixon-wrought shift will not be the true measure of what the President has done to the court. Just as Nixon has too broadly implied that expanded protection for defendants caused rising crime rates, so has he created false expectations that by changing the court's makeup, he will bring about a decrease in lawbreaking. In a more subtle sense, however, the court's new pose will undoubtedly have the psychological effect of lending added respect to the political drive for law-and-order.
It is none of Burger's doing that the court is today regarded by so many disinherited Americans as the last resort, and perhaps it ought not to be. The Chief Justice appears to feel that state and lower federal courts should deal with narrow issues, while the larger social problems should be resolved through the legislative process whenever possible. Liberals may agree with this theory, but they fear that as a practical matter, majority-oriented politics will not adequately champion the rights of the individual. The new court may nonetheless force liberals to use politics more vigerously, rather than the judicial process, to press their ideals. What is more, a new conservative standard of intellectual rigor on the court may compel liberals to greater precision of thought on their own.
Nixon's great court transformation could amount to no more than merely a changed voting majority. If his appointees insist upon only a dogmatic style of political conservatism, they will have failed the country and missed a great oppotunity. To avoid that danger, Justices will have to provide a creative, deeply reasoned philosophy of judicial restraint in the tradition of Justices Frankfurter and Louis Brandeis. It will be imperative that they explain clearly and compellingly the theory government that is leading them to change the court's function. That is why the President's 23rd-hour decision to step up from mediocrity in his court choices was such a profound relief to all who care about the law in the U.S.
*Although her name appeared on the list of possibilities, District of Columbia Superior Court Judge Sylvia Bacon was never seriously considered.