WE Americans turn over more of our society's disputes, decisions, and concerns to courts and lawyers than does perhaps any other nation. Yet, in a society that values democracy, courts have trouble justifying their power and maintaining their legitimacy. The judiciary is a nonmajoritarian institution, whose guiding lights are usually appointed rather than elected and, even where elected, are not expected to express or implement the will of the people. Judicial legitimacy rests elsewhere: on notions of honesty and fairness and, most important, on popular perceptions of the judicial decision-making process. Judicial power of the sort we routinely accept probably requires an additional ingredient--a very American distrust of government or any form of collective action.1
Basic to the popular perception of the judicial process is the notion of government of law, not people.2 Law is, in this conception, separate from--and "above"--politics, economics, culture, and the values or preferences of judges or any person. In this separation resides the law's ability to be objective, principled, and fair. Legal scholars, philosophers, and some of our best minds in a range of disciplines have long debated whether this separation accurately describes our legal system or is attainable in any system. But the ideal is problematic, even if it is, or can be, realized in practice.
The concept of government of law, not people, is so familiar, so much a part of our national identity, that its meaning can be difficult to notice, but it describes a political system that is deeply distrustful of popular