The Judicial Role in a Litigious Society
IN HISTORICAL perspective, the role and power of the judiciary have always proven controversial, from the debates between Federalists and Anti-federalists during the founding of the republic to contemporary discussions of an "imperial judiciary" and "government by the judiciary." 1 Since Marbury v. Madison, the judiciary has assumed an important role in constitutional politics and shaped or given direction to public policy. Even as a forum for resolving private disputes, courts historically made policy. The "private law" of torts and contracts, for example, is actually "public law in disguise" 2 inasmuch as it orders socioeconomic relations and redistributes wealth.
The role of courts in our ever-litigious society has changed and become more important to the resolution of a growing range of public and private controversies. Increasingly in the twentieth century, Judge Irving Kaufman comments, "the judiciary has been an accelerator of government rather than a brake."3 Judge Ruggero Aldisert, in chapter 27, points out that the changing role of courts is only partially due to judicial activism and intervention in the political process. The expanding role of courts, as Justice Lewis Powell among others also repeatedly emphasizes, has been encouraged by Congress's "enactment of remedial legislation deemed desirable to meet the social needs and technological developments of our time. This legislation, much of it creating new rights and inventing redress in courts, generates an ever-widening stream of litigation."4 The growing prominence of the judiciary, moreover, may be due to more systemic political changes. Federal district Judge Jose Cabranes suggests that "as our politics have collapsed or proved unwieldy--the parties, the Congress, the post-Roosevelt presidency are widely believed to be in disarray--our least democratic branch of government has become the chief mechanism for serving democratic ends."5 The