timing woman.” In Campbell v, Acuff-Rone, Justice Souter said:n”The later words can be taken as a comment on the naivete ofnthe original of an earlier day, as a rejection of its sentiment thatnignores the ugliness of street life and the debasement that it signifies.”nThe Court’s words can be taken as a comment on hownfar judges can remove themselves from the way ordinary peoplenthink.nThe Court styles itself as the protector of individual rightsnand self-expression against the will of the oppressive bourgeoisnmajority. Crime, in this context, is a form of self-expression asnwell as social protest and criticism. The Court routinely overrulesnthe actions of local police, boards of education, and thenstate laws under which they act. The beneficiaries of thenCourt’s protection are criminals, atheists, homosexuals, flagnburners, hidians, illegal immigrants, terrorists, convicts, thenmentally ill, and pornographers. The Court calls the deletednstate laws “adaitrary” or “without rational basis,” extravagantnlanguage which, as Robert Nagel points out in his 1989 booknConstitutional Cultures, shows no respect for the acts of popularnassemblies. The Court’s attitude is the opposite of LearnednHand’s belief that “a law which can get itself enacted is almostnsure to have behind it a support which is not wholly unreasonable.”nAs Professor Nagel notes, the Court has acted “to isolatenitself from the general culture, retaining ties of language and intellectualnapproach only to an academic elite.”nThe Court often accepts as facts things that very few peoplenin the country believe. For example, in May 1994, a federal districtncourt ordered the Washington National Guard to reinstatena lesbian nurse because the military’s policy against homosexualsnwas based solely on prejudice. The Court found: “There isnno rational basis for the Government’s undedying contentionnthat homosexual orientation equals ‘desire or j^ropensity to engage’nin homosexual conduct.” Most people, judging fromntheir own propensities, are fairly certain that orientation doesnequal desire.nThe majority has given the Court’s policies a fair chance—n30 years, in fact. Those policies have not been successful. ThenCourt’s failure is disturbing because the primary areas the Justicesntook over—education and law enforcement—are not thatncomplicated. The country handled bodi successfully in thenmuch-maligned 1950’s. Schools and criminal justice, followingnthe majority’s policies, educated children and maintained lawnand order at reasonable cost. Not many people in Americanthink children of either race are better educated and trained todaynthan in the 1950’s. According to the FBI Uniform CrimenReports, violent crime (murder and other nonnegligent homicide,nrape, aggravated assault and robbery) rose from 288,460 innI960 to 387,390 in 1965 to 875,910 in 1973 to 1,923,270 inn1992. A New York Times poll of June 1994 rejjorts that morenthan a third of New Yorkers said that because of their fear ofncrime they had moved to new neighborhoods or were planningnto. The majority’s solutions might have been as feckless as thenCourt’s, but it is hard to believe.nThe federal courts now exercise a level of control over publicnlife that the Papacy would no longer consider. The courtsnsupervise and, in effect, administer schools, prisons, mentalnhospitals, housing agencies, and tax collectors. Ruth BadernGinsburg, prior to her confirmation hearings in 1993, wrote tonthe Senate Judiciary Committee and said that federal judgesnfind these “chores” to be “uncongenial and unwelcome.” Hadn”state and federal legislatures” done a better job, she wrote,n”the managerial jobs the courts took on, generally with reluc­n16/CHRONICLESnnntance and misgivings, could have been avoided.” Hie Court’snreluctance has not prevented it from taking over, by 1993, 80npercent of all state prison systems and about 33 percent of then500 largest local jails. Nor does the courts’ reluctance appear innthe language of the consent decrees. The decree covering thenBryce Mental Hospital in Alabama, for example, specifies thatn”Thermostatically controlled hot water shall be provided in adequatenquantities and maintained at the required temperaturenfor patient or residential use (110 degrees F at the fixture) andnfor mechanical dish washing and laundry use (180 degrees F atnthe equipment).” This kind of demand led Archibald Cox innThe Role of the Supreme Court in American Government (1976)nto conclude that the “individual federal judge became, in effect,nthe chief executive or administrator of Bryce Hospital.”nSimilady, an individual federal judge runs the prison systemnof South Carolina pursuant to a 1985 consent degree settlingna class action brought by the American Civil Liberties UnionnNational Prison Project. The governor and legislature havennothing to say about it. The 169-page decree specifies the standardsnfor food, clothing, gym, library, square feet per convict,nand grievance procedures. The decree further specifies antimetable for rehabilitation and the new construction of prisons.nIt prohibits “triple celling.” The state must pay the attorneynfees of the ACLU for securing the decree and any futurenfees incurred in enforcing it. If the federal judge believes thenstate is not complying with the decree he “shall order immediatenrelief, which may include population reductions includingnrelease” of prisoners.nPrison systems run by federal judges have a different characternfrom those run by state legislatures. A federal judge innNorth Carolina, James McMillan, has ordered the state to purchasenrecreational equipment, including three sets of horseshoes,nthree guitars, five frisbees, fifty decks of playing cards,nand a piano. South Carolina, saving itself some legal fees,nagreed without court action to a recreational program whosenstated purpose was: “To jjrovide for comprehensive recreationalnactivities for inmates on a voluntary basis reasonably comparablento those available in the community.” This includes butnis not limited to “horseshoes, croquet, badminton, [and] paddleball.”nRegional tournaments are to he scheduled annuallynfor, among odier things, “chess, checkers, and backgammon.”nThe backgammon winner of the Regional Tournament goes onnto the SGDC [South Carolina Department of Corrections]nChampionship Tournament unless the “warden of the host institution”nnotes a “caution which would prevent the inmatenfrom being transported.” Will the released population be ablento find competitive backgammon players and appropriate croquetnlawns on the outside?n”Liberty,” wrote I.,earned Lland in 1944, “is the product notnof institutions, but of a temper, of an attitude toward life; . . .n[of a] faith in the sacredness of the individual.” Courts do not,nin fact, act on neutral principles. The spirit of liberty is then”spirit which is not too sure it is right; the spirit of liberty is thenspirit which seeks to understand the minds of other men andnwomen; the sjjirit of liberty is the spirit which weighs theirninterests alongside its own without bias.” Liberty “will prevailnonly as long as it is supported by the community. … A societynso riven that the spirit of moderation is gone, no court can save;nthat a society where that spirit flourishes, no court need save;nthat in a society which evades its responsibility by thrusting uponnthe courts the nurture of that spirit, that spirit in the endnwill perish.” The ultimate question is whether the rights of in-n