Is the law of the Supreme Court a reflection of the notions of "policy" held by its members? The question recalls the controversy over whether judges "make" or "find" the law. A generation or two ago it was thought rather daring to insist that judges make law. Old Jeremiah Smith, who began the teaching of law at Harvard after a career on the New Hampshire Supreme Court, properly deflated the issue. "Do judges make law?" he repeated." Course they do. Made some myself." Of course Supreme Court justices decide cases on the basis of their ideas of "policy."
But to say this, as to say that judges make law, is not the end but only the beginning of sophistication. For there are levels of policy; and in Supreme Court litigation, values, like troubles, come not single spies but in battalions. In one aspect, a case may present an issue of civil liberties; it may also involve issues of