Has the Burger Court Gone Too Far?

Commentary, October 1984.


Only yesterday, it seems, federal judges were being admired for refusing to confine themselves to the modest but appropriate role of interpreters of statutory or constitutional texts. The late Justice William O. Douglas especially was esteemed in liberal circles precisely because, as someone said, he “dared” to raise the question of what was good for the country and then to translate (or, at least, to try to translate) his answers into constitutional law. The authors of The BrethrenWashington Post writers Bob Woodward and Scott Armstrong, called this most “activist” of judges our “greatest living jurist” and regretted his retirement from the Supreme Court. Better than any other of its members, not excluding the Chief Justice who gave it its name, Douglas characterized the Warren Court, and among liberals that Court was held to be the best or among the best in our history.

According to J. Skelley Wright, at the time Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit, the Warren Court taught the country that there need be no “gulf between the law and morality”; bridging the gap between them was understood to be the proper role of the courts, and especially of the Supreme Court. Occasionally some crabbed commentator would warn the public of the danger of conceding this sort of power to federal judges who, after all, tend to serve at their own pleasure and are responsible to no one. But in the opinion of those who counted—Harvard law professor Abram Chayes, for a conspicuous example—the Court was properly charged with this duty, and the Warren Court especially could be trusted with it.

American Enterprise Institute