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The Burger Court of the 1970s has proved less liberal, but it is hardly a model of judicial restraint. Rather, it is what scholars call "selectively activist," which some say means that its activism depends on whether or not it likes the result. One of its most activist decisions remains Roe vs. Wade (1973), which found in the Constitution an implicit right for women to have abortions. Although equal protection has of late been invoked less in the cause of the poor and the black, it has been extended to just about everyone else, including aliens, bastards and even 18-to-21-year-old males who were barred from drinking 3.2 beer in Oklahoma while women were not. And in areas the high bench has refused to enter, state courts are now active; for example, courts in New York, California, Ohio, Connecticut and New Jersey have mandated equal financing for school districts. Whatever restraint the courts have shown, says Harvard's Freund, are "eddies in the mainstream."
While listening to his brethren's legalistic arguments at Supreme Court conferences during the '60s, the late Chief Justice Earl Warren would impatiently interject, "Yes, yes,'yes. But is it right? Is it good?" His stance remains at once noble and unsettling. Says Stanford Law Professor Gerald Gunther: "Part of the price of their remarkable independence, tenure, reverence, is that judges are under a special obligation to justify their opinions, even if they got there by their guts originally." Judges are supposed to look for the intent of lawmakers, heed precedent, and hesitate to read their own moral views into the law.
Most important, the judges are bound to uphold the Constitution. But that is not an immutable piece of parchment that judges can apply to laws like litmus paper. It is rather a set of principles that have proved enduring partly because they are flexible. When the original Constitution was written in Hamilton's day, the U.S. was mostly a nation of small farmers who would have fallen on their pitchforks at the thought of today's complicated modern society, or of the broad role that Government plays in running it. By giving the Constitution new meaning, the judiciary has allowed it to keep pace with change, to meet what Justice Oliver Wendell Holmes called the "felt necessities of the time."
Moreover, as Kaufman argues, "it is not enough for justice to be declared. The judge must assure that justice is done." That is why judges get involved in decreeing drastic remedies, as in many school-busing decisions. Usually, a court does not start off by telling the state what to do; it just says what the state cannot do: it cannot stuff ten men into a cell built for two; it cannot provide one toilet per 200 inmates; it cannot ware house mental patients like old furniture. Sometimes that is enough. One Massachusetts judge, hearing a suit protesting pris on conditions, took state authorities on a tour of the prison and asked: "You're sure you really want to defend this case?" The state did not, and (wisely) accepted a consent decree to fix the place up. More often, the state does nothing, and the judge will call in the parties to work out a solution.