out large regions. The reapportionment cases upset ancientnpolitical arrangements. The school prayer cases banished anpractice familiar to generations of students. Each made oursna very much more human society, more equal, freer, andnmore respectful of individual dignity. Each was in keepingnwith the main currents of American history. Yet thenresulting politicization raises concerns about the institutionalncosts of using judicial decisions so often to go so far sonfast. If politically conservative justices come to be a majority,nthey will have to choose between greater restraint and anform of judicial activism not very different from that of theirnmore liberal predecessors.”nAnimosities inspired by the Supreme Court are strongnevidence that we are now a highly politicized nation innwhich the actions of our federal courts have vast impacts onnour everyday lives. It was only about 60 years ago thatnCalvin Coolidge observed, “If the Federal Governmentnshould go out of existence, the common run of peoplenwould not detect the difference in the affairs of their dailynlife for a considerable length of time.” Today the exactnopposite is true, and one of the inevitable effects of thenconcentration of vast power in Washington is that SupremenCourt decisions are important to us all.nBut there are at least two other major causes for thenpolitical passions in these deliberations. The more importantnis the revolution that has taken place in the very meaning ofn”law” to most legal scholars, judges, and lawyers. Thenconstitutionalists were imbued with the belief that humannbeings are able to reason and exercise free will to constrainnthe animal passions of human nature, including the passionsnof political factionalism. They knew well from their greatnknowledge of history that these passions are very powerful,nbut they believed it possible to devise a system of checks andnbalances in which men of goodwill who understood thendangers of such political passions, and who made theirndecisions within the constraints of experience, would benable to transcend them sufficiently to prevent a tyranny bynmobs or by one faction from emerging. They saw law as thenaccumulation of the wisdom of commonsense experiencenand judges as the men of reason and scholarship who couldninterpret those historical precedents to fit emerging situationsnand, thereby, constrain the animal passions, especiallynthe most powerful of all, the ferocious lust for powernunleashed by all political factionalism. They believed,nhowever, that judges could do this only if they deliberatednand decided within the constraints of reason and scholarship,nand only if they were chosen outside the vortex ofnpolitical passions and then buffered from such passions bynsuch devices as lifetime tenure and privacy in their deliberations.nIt soon became apparent in the great controversies overnfederal powers that erupted over decisions by the Marshallncourt that the constitutionalists had underestimated thendegree to which the political forces of our teeming andnrambunctiously changing democracy would impinge on thendecisions of the Supreme Court. Judges in the early decadesnwere more swayed by personal and political partisanshipnthan expected; in a few instances even major decisions bynearlier courts were overturned by later ones, a procedurenthat violated the ideal of judicial decisions made in the fullnwisdom of accumulated legal precedents.nNevertheless, the Justices on the whole did seem to benbuffered from political passions and those in the later 19thncentury were much more scholarly and constrained in theirndecisions, a development that owed much to the increasednscholarly standards of American law in general. Theirndecisions were generally made in the ancient tradition of thencommon law, that is, they made their decisions “at thenmargin,” cautiously adapting the ancient commonsensenwisdom of the whole body of laws and precedents to thenemerging, most lasting, and seemingly most wise socialntrends. While not many of the Justices attained the universalitynof Solomonic wisdom, few, if any, sought to changenthe whole course of the society by creating radically newninterpretations of the accumulated wisdoni. Right up to thenNew Deal, the vast majority of attacks on the Court werenfor supposed crimes of conservatism — “dragging their feet”nagainst popular passions. The whole idea of law andnjudiciousness, as understood by the constitutionalists and bynthe majority of Americans today, has always been tonconserve the wisdom of the ages, to conciliate and compromisensincere differences, and to be a bulwark against the evilnpassions that so easily sweep over us — threatening to sweepnaway all rights — in political warfare.nToday there is still a minority of legal scholars, judges, andnlawyers who hold firmly to this classical liberal and moderaten(Whig) conservative idea of law and judicial decisions, whilenthere is an even smaller minority of politicians (most ofnwhom are also lawyers) who agree with them, if less firmly.nBut the dominant majority of the legal professors andnpoliticians now take it for granted that the constitutionalistsnwere wrong. They assume, without examining the vastnevidence from all civilizations, that law and judicial decisionsnare predominantiy determined—caused—by politicalninterests and passions and that, consequently, judicial decisionsncannot to any significant degree be buffered from andntranscend the political passions. (They share a kind ofnwatered-down version of the economic determinism ofnMarxist theory that is now firmly embedded in the positivist,nstructuralist, and “critical” theories of the social sciencesnand history that are dominant in our law schools and “elite”nuniversities in general, but the explanation of their views isnnot our purpose here.)nThis revolution in legal philosophy is not a figment ofnconservative dread. It is a fact both admitted and hailed bynhonest liberal jurists. In his biography of Earl Warren, G.nEdward White, who served as a law clerk to the ChiefnJustice, is explicit in showing that Warren, in his “mission tondo justice,” had littie concern for the Constitution ornprecedents. In How Courts Govern America, RichardnNeely, a member of the West Virginia Supreme Court,nargued that courts do, must, and should govern the nationnby exceedingly liberal interpretations and provided practicalnguidelines for doing so. As he concluded: “Once we arenwilling to admit that courts have political roles which arendictated by the nature of other institutions, we can begin tonspeak to those roles directly and not in the slave language ofnconstitutional interpretations, statutory construction, ornresult-oriented standards of review dressed up as neutralnprinciples. … So the limits on court power in governmentnare not set by either constitutional theory or discoverablenlaw, but rather by the tolerance of the countervailingnnnMAUCH 1988 I an