social agenda; the courts have become arnkind of elevated bureaucracy, busilyrncrafting formulae that will bend the nation’srnaffairs toward various visions, dignifiedrnby constitutional status.”rnThe “various visions” come from whatrnPaul Hollander calls the “adversarial culture,”rnan intellectual elite which believesrnthe “prevailing social order is deeplyrnflawed, unjust, corrupt and irrational,rncalculated to constrain or reduce humanrnsatisfactions.” The Court styles itself asrnthe protector of individual rights andrnself-expression against the will of the oppressivernbourgeois majority. Crime, onrnthis understanding, is a form of self-expression,rnas well as of social protest. ThernCourt routinely overrules the actions ofrnlocal police, boards of education, and thernstate laws under which they act. It callsrnthe deleted laws “arbitrary” or “withoutrnrational basis”—extravagant languagernwhich, as Professor Nagel notes, showsrnno respect for the acts of popular assemblies.rnThe Court, he writes, has “isolatern[d] itself from the general culture, retainingrnties of language and intellectualrnapproach only to an academic elite.”rnWhy are so many members of this intellectualrnelite convinced that their societyrnis unjust and immoral? Certainly,rnthey are not themselves victims of the injusticesrnto which they arc so sensitive. Indeed,rnAmerican society has providedrnthem with a comfortable, and oftenrntenured, position. Nagel speculates thatrnthe alienation of the judicial elite has arnparticular history:rnThe single most significant eventrnfor present-day judges and scholarsrnwas the federal judiciary’s extendedrnand often heroic assault onrnracial segregation in the South.rnThe profound formative influencernof this struggle has shaped as hasrnnothing else law, role, and aspiration.rnThe operative image hasrnbeen of the courts attacking a perniciousrnand deeply ingrained partrnof popular culture. By degrees, Irnbelieve, this image of the judiciaryrnas antagonist to the popular culturernhas consolidated and grown,rnso that the courts’ basic functionrnhas become that of critic and reformerrnof the general culture. Nornmore than the arrogant modernrnpainter or composer, whose rolesrnalso are to uplift an unappreciativernand uncomprehending mass sensibility,rnneed the judiciary employrnan idiom that draws on and is understandablernto ordinary people.rnThe courts are the leading participantsrnin the debate over homosexuality,rnwhich has locked American society in arn”ferocious struggle over defining thernmorality of sexual behavior, the meaningrnof psychological health and the functionrnof family life.” While the rhetoric onrnboth sides is often extravagant, the disputernis about real and irreconcilable differencesrnon matters that are crucial to individuals,rnfamilies, and society. Nagelrnwrites: “A gathering consensus in respectablerncircles holds not only thatrncourts should resolve the important disputesrnabout public policy on homosexuality,rnbut that they can do so in a wayrnthat does not require anyone to answerrnthe underlying moral questions.” Thernanswers to the questions, says Nagel, arern”far beyond the competence of anyrncourt.”rnNagel focuses on the Court’s use ofrnstilted academic language and thernformulaic style of its opinions. For example,rnin United States v. O’Brien (1968), inrnwhich it upheld the conviction ofrnO’Brien for burning his draft card, thernCourt reformulated the simple languagernof the First Amendment to read:rnThis Court has held that whenrn”speech” and “nonspeech” elementsrnare combined in the samerncourse of conduct, a sufficientlyrnimportant governmental interest inrnregulating the nonspeech elementrncan justify incidental limitationsrnon First Amendment freedoms.rnTo characterize the quality of therngovernmental interest which mustrnappear, the Court has employed arnvariety of descriptive terms: compelling;rnsubstantial; subordinating;rnparamount; cogent; strong. Whateverrnimprecision inheres in thesernterms, we think it clear that a governmentrnregulation is sufficientlyrnjustified if it is within the constitutionalrnpower of the Government; ifrnit furthers an important or substantialrngovernmental interest; if therngovernmental interest is unrelatedrnto the suppression of free expression;rnand if the incidental restrictionrnon alleged First Amendmentrnfreedoms is no greater than isrnessential to the furtherance ofrnthat interest.rnWould the people ever have adoptedrnthis mishmash as a Constitutionalrnamendment? The Court’s formulaernlead to bizarre and uncxplainable results:rnprotection for the burning of flags, butrnnot for the burning of draft registrationrncards; protection for yard signs, obscenity,rnand nude dancing, but not for FrankrnSnepps’s book critical of the precipitousrnAmerican withdrawal from the SaigonrnEmbassy roof, in which the records ofrnmany who had assisted the United Statesrnwere left behind. If those decisions canrnbe reconciled, then, to use Jefferson’srnwords, “I surrender human reason as arnvain and useless faculty, given to bewilder,rnand not to guide us.” The Court’srnprogram, as Nagel writes, “has done greatrndamage to the public understanding andrnappreciation of the principle of freernspeech by making it seem trivial, foreign,rnand unnecessarily costly.”rnNagel explains how the Court’s use ofrnterrible English reflects and is designedrnto obscure the collapse of clear analysis.rnIts language is not intended to conveyrnthought, but to accomplish a politicalrnpurpose. The Court’s use of complicatedrnformulae is meant to render the “judiciary’srnadversarial relationship with therngeneral culture” more acceptable byrnmaking its decisions appear technicalrnand objective:rnThe style is a conscientious effortrnto maintain intellectualrnrespectability while attempting tornformulate and implement complexrnpolicies through institutional layersrnand across time. The “constitution”rnhas become an ambitious politicalrnand social agenda; the courtsrnhave become a kind of elevatedrnbureaucracy, busily crafting formulaernthat will bend the nation’s affairsrntoward various visions dignifiedrnby constitutional status.rnIn Wallace v. ]affree (1984), the Courtrnoverturned an Alabama law calling for arnmoment of silence in the schools. ThernCourt conceded that it was constitutionalrnfor students to have prayerful thoughtsrnin school, since to hold otherwise wouldrnviolate several freedoms. But, nonetheless,rnthe Court threw the law out becauserna legislator had expressed an improperrnmotivation in saying that he wanted tornreturn prayer to public schools, and thernmoment of silence was the first step towardrnthat end. The Court claimed to bernstanding athwart the bridge to protectrnAUGUST 1995/29rnrnrn