In a pitilessly consistent democracy, judges would not be making law at all," said Judge Learned Hand. Why, then, he wondered, do people not resent it when they do? That was 35 years ago, when judges were for the most part more restrained about making new law than they are now. Today many Americans do resent an ever-more-activist judiciary. Beware, warns a vocal group of scholars: the Imperial Presidency may have faded, but now an Imperial Judiciary has the Republic in its clutches. The fear, as Constitutional Scholar Alexander Bickel once expressed it, is that too many federal judges view themselves as holding "roving commissions as problem solvers, charged with a duty to act when majoritarian institutions do not." Given license by a vague Constitution and malleable laws, and armed with their own rigorous sense of right and wrong, judges have been roving all over the lot: into school desegregation, voting rights, sex, mental health, the environment—the list goes on and on.
Judges do not just judge any more; they legislate, make policy, even administer. Indeed, says U.S. Court of Appeals Judge Irving Kaufman, "sometimes it seems that business, psychology and sociology degrees, in addition to a law degree, should be prerequisites for the federal bench." When Boston's duly elected school committee refused to bus schoolchildren, the local federal judge did it himself, right down to approving the bus routes. A federal judge in Alabama ruled that inadequate mental-health care is unconstitutional. So what is adequate? His answer was a list of 84 minimal standards, reaching down to a supply of hot water at 110° F. Result: while Alabama in 1971 spent $14 million on its mental institutions, in 1973, after the court order, it spent $58 million.
"Courts are not a budgeting agency," says Harvard Law School Professor Emeritus Paul Freund. "They see problems through a keyhole. What they ordain in the way of expenditures is not correlated with expenditures for other needs." To clean up state prisons, judges in Alabama, Rhode Island, Oklahoma and Louisiana have decreed elaborate instructions on food handling, hospital operations, recreation facilities, sanitation, laundry, painting and plumbing, including the number of inmates per toilet. In Virginia, a federal judge overruled a school-board ban on the publication of a high school poll on birth control; in New Mexico, a judge ruled that Mexican American children must have bilingual education. To save a three-inch fish, the snail darter, the U.S. Supreme Court stopped a $116 million hydroelectric project in Tennessee.