The effect of Professor Michelman’s style of argument, which has quite a number of devotees on the faculties of both Yale and Harvard, is to create rights by arguments from moral philosophy rather than from constitutional text, history, and structure. The end result would be to convert our government from one by representative assembly to one by judiciary. That result seems to me unfortunate for a variety of reasons.
Equality, or at least the rhetoric of equality, has been almost from the start a central issue in our society. The debate, however, has been a fluid one, because the society has shifted from the pursuit of one concept of equality to the pursuit of another. The former concept of equality I shall call equality before the law. The latter I shall call equality of social-political-economic status.
Rather than looking at what the courts have produced in the way of philosophy, principles, and concepts that comprise those sundry bodies of substantive law which attempt to implement the drive for equality, I consider the effect of the egalitarian thrust on the courts and the orders they enter, their role and functions, their procedures, and their relations with the executive and legislative branches.
I will articulate some distinctions that seem important in thinking about the problems of the changing role of judicial institutions. I will suggest some differing identifications of the major historical roots of our current situation. Further, I will venture my own guesses about where we may be heading.