the country from the barbarians: “Thosernwho begin coercive ehmination of dissentrnsoon find themselves exterminatingrndissenters.” Similarly, the Court believedrnit was saving us from totalitarianismrnwhen it overturned Texas’s anti-flagburningrnstatute in Texas v. Johnson. Thisrntime, it offered a countervision: “Thernway to preserve the flag’s special role isrnnot to punish those who feel differently.rnIt is to persuade them that they arernwrong.” There is, the Court continued,rn”no better way to counter a flag burner’srnmessage than by saluting the flag thatrnburns.” Does the country need ninernPlatonic Guardians to save us from totalitarianism?rnIs it plausible that ninernGuardians can save us from totalitarianism?rnIndeed, is it possible that the ninernGuardians are the problem rather thanrnthe solution?rnIn his current book, as in his past writings,rnNagel provides the best analysis yetrnof the Court’s method, and of the relationrnof its style to its purposes. ThernCourt’s opinions are written in a wayrnthat “masks significant considerations.”rnThey “indicate a direction and a sense ofrnurgency without revealing any animatingrnvision or underlying judgment.” Thernstream of words is “insistent but funda-rnBOOKS FOR THErnCULTURE WARSrnWRS Publishing, arncommercial publisher,rnseeks books onrncharacter-building,rneducation, childrearing,rnand culturalrncriticism.rnFor information onrnsubmitting a proposal,rncall or write to:rnWRS PUBLISHING;rnDept. 3rnP.O. Box 21207rnWaco, TX 76702-1207rn800-299-3366rnmentally ineffective, baffling.” But thernCourt’s vision is shared by mainstreamrnscholars like Lawrence Tribe and RonaldrnDworkin. As Nagel writes:rnThe society that Justice Brennanrnwould create is thought by many tornbe not only morally attractive butrnlegally imperative. In that imaginedrnsociety, virtually all acts expressingrndefiance are protected asrn”speech”; people revel in, hidernfrom, or are inured to the clamorrnof offensive communications andrnsexually explicit materials; churchrnand state are separated by a highrnand (mostly) impregnable wall;rngender differentiation has beenrneliminated; abortion is freely available;rnsexual freedoms have beenrnextended to minors and to the unmarried;rnthe institution of marriagernhas withered into legal insignificance;rnand death itself is arnliberty protected by the Constitution.rnFor many judges and legalrnacademics, this worid, or somethingrnlike it, marks the limit ofrnimagination and tolerance. In thisrnthere is a dogmatism that the lawrndignifies and obscures.rnThe Court has expressed mystical beliefsrnabout its relation to the people. Itrnbelieves it must have the power it doesrnbecause of “our sense of ourselves as arnpeople”—a view boldly stated in thern1992 decision Planned Parenthood v.rnCasey, where, speaking of the Americanrnpeople, the Court said: “Their belief inrnthemselves as such a people is not readilyrnseparable from their understanding ofrnthe Court invested with the authority tornspeak before all others.” Speaking beforernall others is a heavy responsibility, and itrnis hard to see when and where the peoplernimposed that burden on the Court.rnNagel is one of few commentators tornnote that Robert Bork and his critics arernmore alike than they are different. Bothrnagree with judicial review as establishedrnby John Marshall in Marbury v. Madison.rnBoth believe judicial review is and shouldrnbe “an essentially intellectual activity superimposedrnover majoritarian politics.”rnIt is true that a judge like Bork will interferernwith the majority less than willrnWilliam Brennan, but who knows whenrnor where? Senator Biden asked Bork onern”admirably blunt” question: “Does thernmajority have the right to tell a couplernthat they cannot use birth control?”rnBork’s answer was evasive and intellectualized.rnA similar issue was at stake in thernScopes trial, and drew this commentrnfrom Learned Hand: “Somebody mustrndetermine the curriculum, who shall itrnbe? The judges [or the State of Tennessee]?”rnThe people. Hand believed,rnhave the right to decide controversial issuesrnthemselves. They will make mistakesrnbut, as Jefferson wrote to Lafayette:rn”The good sense of our people will directrnthe boat ultimately to its proper point.”rnThe country’s long acquiescence inrnthe peculiar institution of judicial reviewrnis puzzling. Judicial review assumes thatrnthe President and Congress, the branchesrnresponsible to the people, either cannotrnunderstand—or will not respect—rnthe Constitution, and that the SupremernCourt does understand it and will respectrnit. Its philosophical assumptionsrnare so inconsistent with democratic theoryrnthat a long tradition of legal thoughtrnhas resisted it. Jefferson believed judicialrnreview to be a very dangerous assumptionrnof power by the Court, whichrn”would place us under the despotism ofrnan oligarchy.” Jefferson, Madison, Jackson,rnLincoln, and both Roosevelts all opposedrnit.rnFor many years, judicial self-restraintrnallowed judicial review, while fundamentallyrninconsistent with majority rule,rnto coexist with it. For the past 30 years,rnhowever, the Supreme Court has usedrnjudicial review unrestrainedly to imposernbasic social and economic policies uponrnan unwilling majority. Nagel believesrnour long acquiescence in the practice isrnbecause, in some sense, we want judicialrnrule: an anxious society will put its trustrnin the courts although its resort to themrnonly reinforces its weakness. Our dependencernon the judiciary is based on “a disturbingrnsense of distrust in ourselves andrna fear of disintegration.” This depressingrnconclusion perhaps reads too much intornpublic acquiescence to judicial review.rnThe same judicial arrogance that Mr.rnNagel has documented so well may ultimately,rnhowever, cause the downfall ofrnjudicial rule, since the willingness of thernjudiciary since 1965 to oppose the wishesrnof the majority has placed the courtsrnsquarely in the role of adversary to thernpeople. The consequent loss of popularrnrespect for the judicial system onlyrnheightens the likelihood that the majorityrnwill eventually reassert its rightful authority.rn30/CHRONlCLESrnrnrn