dents away from their neighborhood and private schoolsrnthrough distinctive curricukims of a high quahty. ThernSupreme Court beHeves that a federal judge must bernable to right any wrong he sees. Righting the wrong inrnthis case apparendy meant high schools in which everyrnclassroom will have air conditioning, an alarm system,rnand 15 microcomputers; a 2,000-square-foot planetarium;rngreenhouses and vivariums; a 25-acre farm with anrnair-conditioned meeting room for 104 people; a modelrnUnited Nations wired for language translation; broadcastrncapable radio and television studios with editing and animationrnlabs; a temperature-controlled art gallery; moviernediting and screening rooms; a 3,500-square-foot dustfreerndiesel mechanics room; 1,875-square-footelementar)’rnschool animal rooms for use in a zoo project; andrnOlympic-size swimming pools. By 1995, the total cost ofrnthese judicially ordered improvements had soared to overrn$540 million. Desegregation costs have escalated andrnnow are approaching an annual cost of $200 million, hirnKansas City, “white flight” long ago emptied the city ofrnmiddle-class homeowners, so the tax burden is predominantlyrnpaid by businesses who pass it along if they can.rn2. Rockford, Illinois, is an old industrial city with plent}’rnof remaining blue-collar and white-collar, middle-classrnhomeowners. Putatively to avoid protracted legal fees,rnRockford’s school board did not contest a racial discriminationrnlawsuit. That was a mistake. A federal magistraternand his handpicked desegregation “master” set to workrndesigning a new school system for the city. By the end ofrn1996, the magistrate had ordered $150 million in newrnproperty taxes. Rockford homeowners—who have lostrncontrol of their destiny—are furious.rn3. Judicial taxation is taxation without representation,rnand that makes people angry. However, if a city councilrnshould resist and refuse to pass judicially ordered legislation,rna federal judge can bankrupt the city. ThernSupreme Court, in the 1990 Yonkers case, approvedrncontempt penalties of $1 million per day against the cit)’rnuntil the council voted to place the public housingrnwhere the Court wanted it.rn4. The Supreme Court, for more than 20 years, has authorizedrnits district courts to use “equitable remedies” tornundertake legislative and executive functions. ThernCourt made this broad grant of authorit}’ in the 1968rnGreen v. New Kent County decision, which found thatrnVirginia had an affirmative duty to integrate its schoolrnsystem pursuant to court-approved plans. Based on thisrndecision, the federal courts have assumed control not onlyrnof schools but of prisons, mental hospitals, and publicrnhousing.rn5. Judicial taxation does not seem anah-tically distinctrnfrom any of the other federal mandates which shape arnstate’s spending power. In South Carolina, for example,rna federal judge, pursuant to a consent decree, orderedrnprisons built and maintained at a level of comfort establishedrnby the ACLU Prison Project, which included croquetrnfields and backgammon tournaments. The judgerndid not order new taxes, but the effect is the same sincernthe state budget must, to avoid a tax increase, be cut elsewherern(e.g., the state must reduce public school funds tornprovide court-ordered education for prisoners).rnThe Court, in the examples above, combines the judicial,rnlegislative, and executive powers into a single person, butrndoes it really have the authority to do so? To answer this question,rnwe have to go back to the basics. “The ultimate question,”rnLearned Hand wrote in 1958, “is whether the rights of individualsrnare safer in the hands of the majority than in the hands ofrnappointed guardians.” Hand believed a free society “will findrnits own solutions more successfiilly if it is not constricted by judicialrnintervention.”rn”If men were angels,” James Madison wrote, “no governmentrnwould be necessary,” and “if angels were to govern men,rnno controls on government would be necessary.” Lacking eitherrncondition, Madison assumed that we need checks and balancesrnto limit power. Thomas Jefferson wondered if “man cannotrnbe trusted with the government of himself, [can] he, then,rnbe trusted with the government of others? Or have we foundrnangels in the forms of kings to govern him?” Is it plausible, is itrnlikely, that the Founders threw out an English king so theyrncould be ruled by nine judges on a Supreme Court?rnChief Justice John Marshall in Marbury v. Madison (1803)rnasserted that his Court was the final authority on what the Constitutionrnsays. Because of Marshall, the guardians appointed tornthe Supreme Court have the last word on most of the importantrncultural, social, political, and economic issues facing the country.rnMarshall’s theory of judicial review. Hand believed, wasrnnot supported by any language in the Constitution or in democraticrnphilosophy. He thought judicial supremacy clearly violatedrnthe doctrine of the separation of powers, the centerpiecernof our republic. Nonetheless, Hand thought judicial reviewrnshould play a small role in a narrow group of cases to provide arnfinal arbiter for clashes between the separate branches.rnBut the two ideas—majority rule and judicial supremacy—rnare, as Hand recognized, oil and water. The majorit)’ can rulernor the guardians can rule, but they cannot both rule. Hand’s effortrnat reconciling them was to say that judicial review shouldrnonly be used in extremis—it would be confined to the need thatrnevoked it.rnAccording to this doctrine of judicial restraint, the courtsrncould only govern us in cases of absolute necessity. The countryrnprospered under this doctrine into the 1950’s, but it dependedrnon the cultural outlook of the individuals involved andrntheir understanding that the independence of the judiciaryrnwould be lost if the limits of judicial power were not recognized.rnIt was never an intellectually stable doctrine—it couldrnnot formulate a clear and valid criterion to describe when thernCourt would or would not intervene and govern. It was a selfimposedrndeference to the legislature with very elastic limits.rnBut, despite its theoretical weakness, judicial restraint was veryrnsuccessful because it respected the constitutional obligations ofrnthe states and of the other two branches of government.rnThe current Court, for the most part, respects the constitutionalrnobligations of the other two branches of government butrnnot those of the states. The federal courts tell Kansas City andrnRockford how to run and finance their schools; they do not tellrnCongress or the President how to perform their constitutionalrnduties. The courts view the states as regional departments ofrnthe national government rather than the sovereign entities thatrnwon the Revolution and created the Constitution.rnFEBRUARY 1998/19rnrnrn