WARREN BURGER ON JUDICIAL CAUTION II

Below is the text of the most extensive note I found in the books from Warren Burger's library that I bought in the fall. The note fills up page 16 of Samuel Lubell, The Hidden Crisis in American Politics (1970). It expresses a familiar conservative distrust of courts as a forum for social change. Here is a scan of the full page:





The text reads as follows:

Our national trait - 'do it now', 'hurry up' or 'impatience*' that made us preeminent in technology has been our weakness in the political process. This is manifest in

-A resort to the judicial process as a 'cure-all' for the slowness of the legislative process

-resort to the judicial process because of the slowness of the amending process (const.)

-'liberal' reliance on the Supreme Court as the 'problem-solver' thus refuting the very essence of the fumbling-bumbling character of the democratic process. This is an impatient turning to the Platonic Guardians Learned Hand feared. Frankfurther + Black saw this after a decade + more of 'flirting' with the Platonic Guardian approach.

* See Sp. Bar of NY Feb 1970
Ded. Sp. Holmes Bust, NYU. 1970
Sp. ABA. 1969, Aug

The text on the facing page (17) is reproduced in my post from Monday, 2/12, and here is a scan of the note:




Combined with the note from Bruckberger that I discuss in last Thursday's post (immediately below), these texts present in encapsulated form a conservative critique of the judiciary as a site for social change. Burger hints at a belief that social change should be resisted by political institutions - it's "impatience" that causes a resort to the judicial process, not something benign or morally defensible, not something laudible like a sense of injustice. Social change should be slow: "Man does not leap over centuries."

But the resort to the judiciary is also indicative of political weakness for Burger. Does he take legislative intertia and the high bar of Article V's amendment procedure as political givens? Put another way: if our political process is weak, as Burger notes, is that weakness primarily a function of unhealthily expansive demands or unduly restrictive institutions? My sense is that Burger would choose the former, but I'm not sure.