The twentieth century has ended, and the twenty-first century has begun. At this writing, a conservative president, George W. Bush, is once more in the White House. He was, in a sense, put there by the legal system, or rather the court system. The election of 2000 was bitterly contested, and the results were actually in doubt. A handful of votes in Florida would decide the issue. The Supreme Court made the decisive move to end the wrangling; by a slim, 5 to 4 majority, it put an end to the recounting and the squabbling—and gave the presidency to George W. Bush.1 At the beginning of 2004, Republicans controlled both houses, the presidency, and the Supreme Court. Conservatives talk about a return to older traditions: states’ rights, a smaller, more feeble welfare state, a cap on tort recoveries, an end to “judicial activism.” But nobody, conservative or liberal, Republican or Democrat, southerner or northerner, can turn back the clock. Much can change; much will change; change can go in many directions, none of them predictable. What is absolutely certain is that the past is dead.
People grumble that there are too many lawyers; that taxes are too high; that the government is the problem not the solution; that Americans are too litigious; that society is obsessed with rights, laws, too much of it for our own good; and that something has to be done. But nothing dramatic is likely to happen, at least not soon—nothing, at least, that will make the legal system shrink. A massive, powerful, active legal system is here to stay, for the foreseeable future. The reasons lie deep in the culture, in the economy, and in the political system. They lie deep in the psyche of the American people—and of all modern peoples. They lie deep, too, in American institutions. The Supreme Court, as of 2004, is a conservative Supreme Court, in some ways very conservative. Yet, this same court, in 2003, overruled Bowers v. Hardwick, a case from 1986 which upheld sodomy laws, and struck down every state sodomy law that still survived. It gave its approval (somewhat gingerly, to be sure) to affirmative action.2 It shows no sign of crawling into the cave of “original intent,” shutting down the machine of judicial review, and adopting a stance of humbleness and passivity. The same is true of the supreme courts of the various states.
A legal system is an organized system of social control. It is the skeleton, the bony structure, the musculature that holds a modern society together. Complex societies cannot live without law, in the broadest sense. Higher organisms cannot survive without structure and program. As long as the country lasts, in this complicated, technological, multiplex world, its legal system will be a vital part of its body, the brains and the heart of its institutions. The legal system is coextensive with society. It reflects the wants, wishes, hopes, and demands of society, in all their irrationality, ambiguity, and inconsistency. It follows every twist and turn of their development. The catastrophic attack on America, on September 11, 2001, which destroyed the World Trade Center, has already had a deep impact on politics and on the legal system as well. The “war on terror” is very much a legal war: the Patriot Act, tighter controls on immigration, federalization of air traffic control, and so on. Every crisis and incident in American history leaves its mark, and will continue to leave its mark, on the legal system, as well as on society. The Enron Corporation scandal, and other business scandals, led to calls for more laws, new laws, and changes in old laws. Scandals, tragedies, and incidents reverberate in the legal system. Even more important are and will be the slow, hidden, invisible, underground movements that in the long run shape and mold every society.
The law will reflect, as well, the yearnings of people for justice and fairness: the sense of right, and the sense of wrong. It will also reflect other, less laudable motives: prejudice, a lust for revenge, the thirst for power. It has reflected the strong push toward social and political equality—the civil rights movement, feminism, and so many other movements—but it has reflected, too, and will continue to reflect the deep inequality built into the structure of society. The law, after all, is a mirror held up against life. It is whatever results from the scheming, plotting, striving, hoping, and dreaming, of people and groups, with and for and against and athwart each other. A full history of American law would be nothing more or less than a full history of American life. The future of one is the future of the other. Exactly how the game will play out, in the future, is beyond our capacity to say. But the game will be played, rain or shine.
1Bush v. Gore, 531 U.S. 98 (2000).
2Lawrence v. Texas, 539 U.S. (2003) was the sodomy case; the case that upheld the affirmative action program of the University of Michigan Law School was Grutter v. Bollinger, 129 S. Ct. 2325 (2003). Bowers v. Hardwick was 478 U.S. 186 (1986).