Politics and the judiciary 221ently vote in a particular way in cases involving disputes between employers
and labour unions, in civil rights cases, or in cases relating to individual free-
dom, then the explanation of the nature of law will be very different from ei-
ther of the other types of explanation we have discussed. The role of politics
in the working of the judicial system is clearly quite different according to
which explanation you choose.
The true description of the judicial processes is probably a construction
of all three of these conceptions. The structure of legal rules and institu-
tions does have an internal logic and a function in the political system that
places considerable restraints upon the judges who have the responsibility
for maintaining them. A judiciary that failed to be influenced by the essential
changes that take place in society would soon be bypassed or replaced. At
the same time individual judges, within the limits that the system allows, must
surely be influenced, marginally at the very least, by their personal experi-
ence and deeply held convictions. From the interplay of these three factors
the American judicial system has been able, for two centuries, with varying
degrees of success, to keep the structure of constitutional rules broadly in
line with the enormous changes that have taken place in the society to which
they are applied.
Nevertheless, the policy-making aspect of the work of the courts is bound
to focus attention upon the motives of the judges, particularly by those op-
posed to their decisions. Critics of the way in which the Supreme Court
overruled congressional legislation in the 1930s accused the Court of being
‘a third chamber of the legislature’, or pictured them as nine irresponsible
judges exercising an arbitrary power to overrule the popular will. Members
of the Court themselves have had different views of their function, some
stressing the responsibility of the Court to act positively in defence of the
principles of the Constitution, others stressing that it is the function of the
executive or legislative branches of the government to make policy and to
solve social and economic problems. These two attitudes, judicial activism and
judicial restraint respectively, have in the history of the Court been reflected
in the attitudes of different groups of justices, sometimes one gaining the
ascendancy, sometimes the other. Judicial activism can lead, as in the 1930s,
to the Court striking down innovatory moves by the Congress; or it can lead,
as in the period since 1954, to the Court itself initiating policies at a time
when the legislature is relatively quiescent or even actively opposed to such
policies. Such activism can call down upon the Court the anger of very dif-
ferent groups; on the one hand, those who wish to see the legislature pursue
strong and effective policies, and on the other, those who wish the status quo
to remain undisturbed. The fact that the Court has been under attack at
different times, or even at the same time, by progressive and conservative
forces alike, is in fact a major source of its great strength.
We have established, therefore, the political role of the Court and the
sense in which it must be understood. We shall look more closely at this con-
nection between politics and law in the American judicial system, but it is