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Thus judicial activism is in large part the product of legislative inaction. Says Yale's Bork: "Rather than making the tough choices, legislatures will frequently write a vague law, and pass [the hard decisions] off on the courts." A phenomenally litigious society also fuels judicial power; judges, after all, cannot make law without lawsuits. Tocqueville observed more than a century ago that there is "hardly a political question in the United States which does not sooner or later turn into a judicial one." With the growth of Government, the power of the judiciary has naturally expanded. Thus public-interest groups that cannot sway legislatures will not hesitate to run off to the courts to get their "rights" upheld. Judges are often more likely to extend a sympathetic ear, less likely to get hamstrung by opposing interests.
Finally, democratic institutions simply are not as democratic as they look in civics textbooks. Bureaucrats, who actually run so much of government, may be as insulated from popular accountability as judges, and legislatures are notoriously swayed by special-interest groups. By offering redress to people with no special political clout, says Harvard Law School Professor Laurence Tribe, judges give otherwise disenfranchised groups a voice in the way public funds are spent and Government affects their lives. Activist Tribe complains that what really irks critics of an interventionist judiciary is not activism per se but the (often) liberal results. Says he: "The myth of the Imperial Judiciary is nothing but a mask for injustice." Or, as Civil Rights Lawyer Joseph Rauh puts it: "The Imperial Judiciary is simply the conservative doctrine of inaction dressed up in $5 words."
Still, the feeling persists: the judges have gone too far. Sociologist Nathan Glazer says that the progression of judicially enforced rights has given the country "indigestion," like a boa constrictor that has swallowed a goat. Though judges rate high in public opinion surveys — a poll commissioned by the American Bar Association last year found that 77% believed that judges are "generally honest and fair"— politicians and public alike have begun agitating to make them more accountable for both their judgments and their conduct. But accountability should not come at the cost of compromising judicial independence.
The U.S. at once prizes majority rule and individual freedom; an independent judiciary remains the best insurance that the former does not steamroll the latter. In the end, that means relying on judges themselves to exercise self-restraint. Few would ask the judges to undo all the rights they have advanced in the past 25 years. Yet, having done so much to change society, the judiciary might now pay more heed to the dictum of Justice Louis Brandeis. "The most important thing we do," he said "is not doing."