The dismal 1988 Presidential Election had at least two distinctive characteristics. It was our first presidential race in which virtually all the central issues—criminal rights, abortion rights, capital punishment, the required recital (by teachers) of the Pledge of Allegiance—were judicially generated. Second, and this is directly related, it produced the lowest voter turnout since 1924.
Democratic politics ideally revolves around the compromises needed to secure widespread consent for government actions. Representative government, which encourages citizen participation, leaves the losers in a political contest with part of what they asked for or at least a feeling that their interests were considered. A judicialized politics, in contrast, bypasses public consent. Profoundly anti-democratic when it goes beyond vindicating the fundamental rights of citizenship, judicial politics alienates voters by placing public policy in the private hands of lawyers and litigants. And since rights are absolute, it polarizes by producing winner-take-all outcomes, in which the losers are likely to feel embittered. It's that bitterness, that resentment—whose symbolic residue is the stuff of thirty-second political-attack ads—that now helps drive American politics.
Politics and the judiciary have always been intertwined. For instance, some of the arguments invoked by the conservative Supreme Court nominee Robert Bork at his confirmation hearings, in 1987, replicated the arguments used by President Franklin Roosevelt in his war with a Republican judiciary. FDR insisted that successful government policies required the support of the great majority of the American people. He denounced "the stately ritual of the courts" as creating a politics "in which lawyers play all the speaking parts ... although they always disagree" among themselves. A government, he wrote, of lawyers "who desire to have all processes of Government conducted through lawsuits" was an antidemocratic invitation "to endless and innumerable controversies" and a threat to both "common sense" and "substantial justice." But whereas the conflict of the 1930s that pitted the courts against the elected branches of government came to a head in 1937, with Roosevelt's court-packing plan, the same tensions today are playing themselves out in a process of almost continuous constitutional combat.
Our contemporary political struggles are reflected in the number and type of recently proposed that now helps drive American politics. constitutional amendments. Since the Constitution was adopted, in 1789, more than 10,000 constitutional amendments have been proposed in Congress. But whereas prior to the 1960s an average of fewer than ninety amendments were proposed annually, from 1961 to 1980 the number jumped to more than 230 a year. Prior to the 1960s most amendments addressed the forms of government that can be changed only constitutionally, such as the procedure for presidential elections. But the recent spate of proposed amendments reflects the vastly expanded scope of the Supreme Court's decision—making. There are some, for instance, on school prayer, abortion, and busing, that are designed to overturn unpopular Supreme Court decisions. But many others attempt to turn ordinary political questions, such as balanced budgets and fixed levels of taxation, into matters of right that demand constitutional protection against the give and take of representative democracy.
The attempt to constitutionalize policy—most dramatically with abortion—has resulted in a zero-sum, single-issue politics. Where an interest masked as a right is involved, the single-issue proponents can withstand the collapse of the heavens as long as their interest is served. That is because the assertion of rights fences off the proponents of policies from the social costs those policies impose on the public at large.
Consider, for instance, the tension between the "right" to very expensive treatment that a terminally ill patient has and the social costs that treatment might impose. A rights-based approach leads to the argument presented by Judge Janine Geske, of Wisconsin, that economic considerations are "totally inappropriate" in such a case. In contrast, Judge George Stigler, of Iowa, argued that to ignore economic considerations is to sentence rural hospitals to bankruptcy, at a considerable cost to the communities they serve. What is lost, then, if rights are interpreted so expansively as to define policy, is a concern for the cumulative consequences of individually rendered rights-based decisions.