ȂȂȅ Partʺʺ: Politics and Philosophyrepercussions of a particular decision. Of course, judges are under an obli-
gation to decide according to the law, including precedent; but when leg-
islation, administrative decrees, lawsuits, and court decisions have vastly
proliferated, the judge—cued by the litigants’ attorneys—has all the more
decisions to hunt among for the precedent that will rationalize the deci-
sion he wants to make.
Nathan Glazer (ȀȈȆȄ) describes several factors contributing to a tide
of judicial activism. Powerful new interests are at work, including public-
advocacy law centers supported by government or foundations. “Law—for
the purpose of the correction of presumed evils, for changing government
practices, for overruling legislatures, executives, and administrators, for
the purpose indeed of replacing democratic procedures with the author-
itarian decisions of judges—became enormously popular” (p.ȀȁȂ). Sec-
ond, the courts must work out the logic of positions once taken and can-
not easily withdraw from their implications. New decisions create prece-
dents whose applications and extensions cannot be fully foreseen; case law
evolves with a momentum of its own. Examples concern the concepts of
“standing” to sue, of due process, and of equal protection. Ļird, expansion
of government activity provides all the more subject matter for court cases.
Ļe “facts” relevant to court decisions become all the more numerous and
complex. Social science becomes relevant; and as it changes, so may the
law. Ļe judges acquire all the more opportunities for second-guessing
not only ordinary citizens but also the legislative and executive branches
of government.ȁǿIn short, the courts well illustrate the main theme of
this paper: the fragmentation, on the governmental scene, of cost-benefit
calculation, decisions, and responsibility.
ō ŜśşşŕŎŘő ŏśšŚŠőŞōŞœšřőŚŠ
Considering the circumstances and incentives of voters, politicians, bu-
reaucrats, and judges does seem to reveal a bias toward hyperactive govern-
ment. Yet Anthony Downs (ȀȈȅǿ), who had lucidly explained the rational-
ity of voter ignorance, went on to offer a supposed explanation of “why the
government budget is too small in a democracy.” Ļe core of his argument
is that the rationally ignorant voter does not appreciate all the remote and
problematical benefits that government programs would provide. As soci-
ety becomes wealthier and more complex, the potential scope for remote
ȁǿGlazer cites numerous specific examples of judicial activism. I have rearranged and
interpreted Glazer’s points.