Judicial Activism and Self Government
R. Alexander Acosta
Citizenship is among the most important principles in public life. It is more
than a right. Citizenship describes a system of behavior that encompasses the
duties, obligations and functions of a citizen.' Foremost among these is the
obligation to preserve and protect the Constitution and its system of
government, which makes our freedom possible. Whenever we discuss concepts such
as the need for a free economy, the duties of a citizen in a free community and
the freedom to search for moral truths we must also discuss our duty to protect
our fundamental right to selfgovernment.
Judicial activism is, simply put, judicial usurpation. It occurs when a judge,
believing that a law is unjust, substitutes his or her personal policy
preferences for that law. Suchjudicial lawmaking is wrong. In our democracy, the
people, through their elected representatives or through referenda, enact laws.
When unelected, life-tenured federal judges usurp legislative authority and
replace the law with rules of their own making, they deprive us of our most
fundamental right, the right to self-government. The resulting
government by judiciary can become little more than an oligarchy of
life-tenured legal elites.
Although we now live in a democracy, not an oligarchy, a government by judiciary
may not be far off if present trends continue. The fact is thatjudicial activism
is increasing. More and more 'udges are striking down laws and replacing them with their
own policy preferences.
The purpose of my paper is three-fold. First, I would like to impress upon you
the danger posed by the rising tide of judicial activism. Second, I would like
to evaluate several proposals to curb judicial activism. I will begin my
evaluation by examining the system of government established by the Framers of
our Constitution. This system of checks and balances gives Congress the power to
curb judicial activism. The present rise in judicial activism is, I believe, due
to Congress' unwillingness to exercise these powers. The solution is thus
simple. Congress must exercise its powers. A corollary to this conclusion is
that Congress should not attempt to reform the underlying constitutional system,
as some have proposed.
Third, I would like to emphasize that in a democracy citizenship is the only
long-run solution. We citizens are responsible for Congress' unwillingness to
curb judicial activism more vigorously. We have not rewarded those in Congress
who have spoken out againstj'udicial activism. Indeed, many among us have
embraced, not opposed, judicial activism. The rising tide of judicial activism
cannot be stopped in the long run until we citizens require that it be stopped.
1.
Judicial activism has become a widespread problem. It takes on many forms.
Judges have usurped legislative power. They strike down laws, levy taxes and
reform government. Judges have likewise usurped executive authority. Through the
use of consent decrees and special masters, judges micro-manage an increasing
number of government agencies.
In California, for example, a single federal judge, believing that the nearly
five million citizens who voted for Proposition 209 were misguided in reining in
affirmative action, ordered the state not to enforce the new law. In reversing
this decision, the Ninth Circuit Court of Appeals properly noted that Aa system
which permits one judge to block with the stroke of a pen what 4,736,180
Judicial Activism and Self-Govemment
state residents voted to enact as law tests the integrity of our constitutional
democracy.
In Kansas City, a federal judge decided that voters were spending too little
money on the school system and ordered a tax increase in excess of $1.7 billion.
He then took it upon himself to direct the spending of this money to support
policies that he believed the school district should foster. Following the
judge's instructions, the school system constructed: a 2,000 square foot
planetarium; greenhouses and vivariums; a 24 acre farm with an air-conditioned
meeting room for 104 people; a model United Nations wired for language
translation; broadcast capable radio and television studios with editing and
animation labs; movie editing and screening rooms; a temperature-controlled art
gallery; a 3,500 square foot, dust-free diesel mechanics room; and 1,875 square
feet of animal rooms for use in elementary school zoo programs.' Although
providing public schools with such facilities might be good public policy,
elected officials, not a 'udge, should decide this. In this instance, a judge
adjudicated a case, imposed a tax and supervised the spending of the money. This
is hardly the separation of powers envisioned by our Constitution.
Alabama provides yet another example of judicial activism. Three years ago, a
federal judge entered a judgment that restructuredthestatecourtsystem.
Thejudgementcreatedsixnew state court judgeships-two on the court of criminal
appeals, two on the court of civil appeals and two on the Alabama Supreme Court.
Butthiswasnotenough. Thejudgementfurtherrequired that the new judges not be
selected by statewide election as required by the Alabama Constitution. Instead,
the 'udgement required that each judge be appointed by the Governor from a list
of three nominees selected by a five person commission whose membership had to
include three African-American members.'
A further example of judicial activism can be found in Philadelphia. There, a
federal judge took over the running of the prison system. To counter what she
deemed to be overcrowding, the 'udge ordered the wholesale release of up to 600
prisoners per week. The judge's order devastated Philadelphia. Because of the
order, 2 1-year old rookie cop Daniel Boyle is dead. Officer Boyle was on patrol
when he stopped a stolen police car. Before he could open his door, Edward
Bracey, who had been repeatedly arrested
and released under the judge's order, shot and killed the rookie cop.'
But this is not the only tragedy that resulted from the judge's order. During one 18-month
period, the released individuals committed nearly 10,000 crimes, including 79
murders, 90 rapes and over 2,200 drug dealings.'
Philadelphia is not an isolated example. Federal judges have taken over, in
whole or in part, the running of prisons in 39 states including 300 of our
largest jails.' In Michigan, for example, a federal court micro-manages state
prisons to ensure that food served is sufficiently warm, lights are sufficiently
bright, and air and water temperature are sufficiently comfortable.' Judicial
micro-management also extends to other government agencies. In Washington, D.C.
and many other municipalities, federal courts micro-manage child welfare,
housing and education departments.' Even one decision that is based on a judge's
personal policy whims' rather than on the law, can have dire consequences.
Today, however, we face more than a few instances of judicial activism. The
number ofjudges willing to decide cases based on their policy preferences is
large and increasing. This trend must stop.
II.
Congress has awakened to this problem and is taking active steps to curb
judicial activism. This A rising tide of judicial activism, in the words of
Senate Judiciary Committee Chairman Orrin Hatch, is Anot just an abstract
question for legal theorists ... but in fact is one of the most important policy
issues of the day.A To counter this trend, Senator Hatch has strengthened the
advice and consent process. He has also promised to oppose the confirmation of
any activist individual to the federal bench.
The House and Senate Judiciary Committees have also responded. The House has
introduced legislation to curb judicial activism and the Senate has just
completed hearings designed to identify the best solutions to this problem. Some
in Congress have even called for constitutional amendments to restructure and
weaken the courts.
While the issue ofjudicial activism is critical, we must proceed carefully so as
not to throw out the baby with the bathwater. Many
Judicial Activism and Self-Government
of these proposals will curb judicial activism but some, I believe, are
counter-productive and undermine our system of government. Fortunately, this
issue is not new. The Framers carefully weighed the dangers of judicial activism
when drafting our Constitution. Their debates provide guidance.
The Framers understood that judicial activism undermined self-rule and provided
Congress with the power to curb it. An evaluation ofjudicial reform should thus
begin with a review of the debates that preceded the ratification of the
Constitution.
Our Founding Fathers rightly feared judicial overreaching. The judiciary, Brutus
observed in a series of articles written in 1788, is Atotally independent both
of the people and the legislature .... No [constitutional] errors they may
commit can be corrected by any power above them ... nor can they be removed from
office for making ever so many erroneous adjudications.'3 Such a system is
dangerous, he argued, because judges, like all men, can be Atenacious of
power.A This could drive them A to extend the powers of the courts and to
construe the constitution as much as possible in such a way as to favour [sic]
[greater power].A Because such activist judges could Agive the Constitution a
construction according to its spirit and reason, and not confine themselves to
its letter, nothing would prevent such judges from reading their own policy
preferences in the A spirit of the Constitution. In short,judges could A mould
[sic] the government, into almost any shape they please.
Alexander Hamilton agreed that an activist judiciary undermined self-government.
If judges A should be disposed to exercise will instead of judgment, Hamilton
wrote, Athe consequence would equally be the substitution of their pleasure for
that of the legislative body.A In such a case where Athe power of judging Lis]
not separated from the legislative and executive powers Hamilton Aagree[d] that
there is no liberty.
Hamilton, however, felt confident that the Judiciary could not usurp power
permanently. The Constitution was designed precisely to prevent this. The
Constitution gave Congress the power to screenjudicial nominees, to regulate
judicialjurisdiction and to impeach. Because Congress was A possessed of the
means of punishing their presumption, Hamilton explained, Athere never
can be danger that the judges [would engage in] deliberate usurpations of
[legislative] authority.
This system of checks and balances is the genius of our Constitution. This
system recognizes that even well-meaning people will inevitably be driven by a
natural human impulse to expand their power. It recognizes that mere words
cannot curb this impulse. Rather, it relies on the self-interest of each the
three branches of government to resist usurpations of their power by the other
branches. This system has preserved our freedom for nearly two-hundred years.
This system, so carefully tailored by the Framers, is not working well today.
Despite the efforts of some in Congress, the judiciary is engaging in a
deliberate and open usurpation of authority. The reason for this is simple:
Congress as a whole has beenunwillingtoexerciseitspowertocurbjudicialactivism.
The solution, likewise, is simple. Congress must exercise its power and stop
judicial activism.
The power of Aadvice and consent provides the first line of defense
againstjudicial activism. This power permits the Senate to refuse to confirm,
and thus to screen-out, judicially activist nominees. The advice and consent
process today, however, is flawed. The Senate has no opportunity to Aadvise
and Aconsent is almost guaranteed.
The Senate is not given an opportunity to Aadvise. The White House refuses to
inform the Senate Judiciary Committee of whom it is considering for a nomination
until after the nomination is publicly announced. By that point, of course, it
is too late. The choice has been made without the Senate's advice.
The White House's refusal to seek the Senate's advice is particularlytroubling
becausethe names of potential candidates are disclosed to other groups. The
White House discloses the names to the American Bar Association (A ABA) and
asks for the ABA's adviceonthequalificationofpotentialjudicialnominees. Thatthe
ABA is given what the Senate is denied, namely the power to advise, is
unconscionable.
The Senate's advice and consent procedure also renders consent nearly
automatic. Under Senate tradition, a nominee is unlikely to encounter serious
opposition unless that nominee is Judicial Activism and Self-Govemment
opposed by his or her home-state Senator. Opposing a nomination, however, is
laden with political risk for a home-state Senator. Most nominees are
well-connected in their home state and can cause the Senator serious political
harm. The gain from opposition, by contrast, is very small. There are few votes
to be gained from opposing the nomination of an activist judge. Nor is there any
tangible, immediate harm to be prevented. The harm from ajudge's activism is
diffuse and spread out over future years.
The politics of consent is made more difficult by the White
House'scooperationwiththeABA. Whenanominationismade, the ABA, having been
consulted by the White House, stands ready to support a candidate. Far from a
non-partisan group, the ABA has a broad agenda of social change and takes
positions on issues including abortion, affirmative action, flag desecration,
religious liberty, welfare reform, and even on funding for the national
endowment for the arts. To further its more than 750 policy positions, the ABA
employs a full-time staff often paid lobbyists. The ABA focuses its lobbying
efforts in support of judicial candidates that agree with its positions and may
be willing to enact them into law. Senators cannot easily oppose these efforts,
especially because they, unlike the ABA, have little or no knowledge of who the
nominee is until the nomination is announced by the President. In short, almost
every nominee receives the Senate's Aconsent.
Senator Hatch has recognized these problems and is taking steps to strengthen
the Senate's advice and consent role. Senator Hatch has asked the White House to
inform the Senate of the names of potential nominees earlier in the process. He
has also removed the ABA from its official role in the Senate. The White House
should likewise refrain from seeking the ABA's advice and from providing the ABA
advanced knowledge of potential nominees. These reforms will enable a more
vigorous exercise of advise and consent.
Senator Hatch has also vowed to do his best to oppose the nomination of any
activist individual to the federal bench. He cannot do this alone, however. Home
state senators must have the courage to oppose activist nominees from their
states. And we must exercise our vote to support such actions.
Despite these efforts, the Senate can only withhold consent on a limited number
of nominees. The vast majority will be confirmed. Thus, so long as the President
nominates judicial activists, we must look elsewhere for comprehensive limits on
judicial activism.
Legislative reform offers a second line of defense against judicial activism. By
regulating jurisdiction, Congress can take back power that courts have usurped.
Legislative reform in the House is well underway. The Judicial Reform Act of
1997 (AH.R. 1252") has been adopted by the House Subcommittee on the Courts and
is pending before the Judiciary Committee. The bill has three important
provisions. First, it would require a three-judge panel to enjoin any state law
adopted by referendum. Second, it would prohibit courts from imposing taxes
unless the court finds no other available remedy. Third, it would allow parties
to a case to request a new judge once without cause and as a matter of right.
The Senate is proceeding at a more deliberate pace. The Subcommittee on the
Constitution, under the leadership of Chairman John Ashcroft, just completed a
series of three hearings designed to identify the causes of and solutions to
judicial activism. The Senate is expected to introduce a companion to H.R. 1252
shortly.
H.R. 1252 is an important first step but it requires refinement.
First, H.R. 1252 requires a three-judge panel only in cases involving state laws
adopted by referendum. The vast majority of laws, however, are enacted by the
legislature. Congress should amend H.R. 1252 to require a three-judge panel to
enjoin any state law.
Extending the three-judge panel requirement to all state laws is reasonable.
Indeed, before 1976, three-judge panels with direct appeal to the Supreme Court
heard all cases seeking to enjoin the enforcement of any state law. That year,
Congress eliminated this check on judicial activism in order to reduce the
Supreme Court's docket burden. For the first time in U.S. history, Congress
gave individual district courtjudges the power to enjoin the enforcement of a
state law.
Judicial Activism and Self-Government
Congress' twenty-year experiment has failed. One individual should not, with the
stroke of a pen, be able to enjoin a statute that the citizens or legislators of
a State have adopted. Congress should repeal its 1976 change with one caveat.
The proliferation of state laws that has taken place over the last twenty years
makes direct appeal to the Supreme Court even less manageable today than it was
in 1976. Congress should provide for a three-judge panel with an appeal to an en
banc court of appeals.
Second, H.R. 1252's restriction on judicial taxation must be changed. Presently,
the billpermitsjudicial taxation if there is A no other means available. This
is dangerous and, I believe, unconstitutional. Congress should clearly and
absolutely prohibit all 'udicial taxation. Congress should not carve out a
narrow exception under which courts may levy taxes. Such an exception would
contravene separation of powers. The Constitution states that Congress is the
only branch of the federal government empowered to levy taxes. More importantly,
courts would likely interpret such an exception as enabling legislation and find
that circumstances fit this exception more often than Congress intended. That
there can be no taxation without representation was one of the rallying cries of
the American Revolution. Congress can and should remind 'udges of this simple fact.
H.R. 1252 should include two other proposals. The bill should include a
provision that limits a judge's power to micro-manage executive branch agencies
by restricting consent decrees and special masters.
Consent decrees too often place judges in the position of micro-managers. A
Democratic or Republican city administration that knows it will lose the next
election, for example, often empowers a court, as a condition of settling a
lawsuit, to micromanage a government agency such as a housing development or
school system. Such a consent agreement could allow a court to the manage the
agency in perpetuity.
Consent decrees must be limited. A consent decree should remain in effect only
for a given, and short, period of time, and only if court management is
necessary to cure an ongoing constitutional violation. Renewal of the consent
decree should be possible, but the decree should not be allowed to stand
forever.
A court's use of special masters should also be limited. Special masters are
court-appointed individuals who help a court carry out its duties. Realizing
that they are ill-equipped to administer government agencies or school systems,
courts typically appoint a special master to act as the pseudo-executive in
charge of the agency and then simply supervise the master. Limiting the use of
special masters will limit ajudge's ability to micro-manage a government agency.
Limiting consent decrees and special masters is not a new idea. The Prison
Litigation Reform Act of 1995 restricted the use of consent decrees and curbed
the use of special masters by requiring that they be paid from funds
appropriated for the judiciary rather than by the parties. A judicial reform
bill should include similar provisions that would cover any judicial attempt to
micro-manage a government agency.
A judicial reform bill should also limit pre-enforcement review.
Presently,ajudgecanreviewalawbeforeitisenforced. This allows lawyers to present
the court with a parade of horribles, i.e., fact patterns that make the law
appear silly or irrational. These fact patterns are unrealistic, and even if
they did occur, the law would not likely be enforced under those circumstances.
Executive branch officials have prosecutorial discretion precisely so that they
need not enforce a law in a situation where enforcement would be irrational.
Pre-enforcement review essentially strips the executive branch of its
prosecutorial discretion and makes it quite easy for a judge to strike down a
law he or she dislikes. It should be eliminated.
The aforementioned reforms share a common theme. They assume that our
constitutional system works and that judicial activism can be curbed. They
merely take from courts power that courts have usurped: the power to change
laws, to levy taxes, to manage agencies and to exercise prosecutorial
discretion. They take back that which did not belong to the courts in the first
place.
There is a second category of proposals. This second category assumes
thatjudicial activism cannot be prevented and thatjudges will be political.
Rather than take back power that courts have usurped, these proposals limit the
harm that can result from a judge's activism.
Judicial Activism and Self-Government
H.R. 1252's provision permitting a one-time reassignment of a case as of right
falls in this second category. This provision admits thatjudges might be
political and provides parties with the option of avoiding a hostile judge.
Judge Bork's proposed constitutional amendment to give Congress the power to
override Supreme Court decisions also falls
within this category. Indeed, Judge Bork's proposal is a macro version of H.R.
1252's reassignment provision. While that provision would allow parties to avoid
a hostile Judge, Judge Bork's amendment would allow Congress to bypass a hostile
Supreme Court.
A third proposal within this category is that advanced by Senator Robert Smith
of New Hampshire. Frustrated with the seemingly unending tide of judicial
activism, Senator Smith has introduced a constitutional amendment that would
eliminate life tenure for j udgeS.21 Under this amendment, judges would serve a
ten year term with renewal pending renomination by the President and
reconfirmation by the Senate. Rather than provide an opportunity to limit the
harm a judge can do in a particular case, this amendment limits the harm that a
judge can do over time.
The reforms in this second category are unnecessary and fail to address the real
problem. Our system of checks and balances is sound. There is no need to reform
it. Today's judicial activism is caused by Congress' inactions, and not by a
flawed constitutional system. The solution is for Congress to exercise its
existing power.
The reforms in this second category are also counterproductive and may
dangerously undermine our system of government. These reforms will likely
increase judicial activism by encouraging judge-shopping or by encouraging
judges to act in a politically correct manner. More importantly, they will
deprive the judiciary of its independence or life tenure. The Framers had good
reasons for establishing an independent judiciary with life tenure. Judicial
independence, Hamilton argued, is A requisite to guard the Constitution and the
rights of individuals from the effects of those ill humours which ... can lead
to serious oppression of the minority party in the community. A Life tenure is
an Aindispensable ingredient of this independence. AAdherence to the rights
of the Constitution and of individuals, Hamilton explained, A can certainly not
be expected from judges who hold
their offices by a temporary commission. Periodic appointments, however
regulated, or by whomsoever made, would, in some way or other be fatal to their
independence.
The Framers reasons for establishing an independent'udiciary are as true today
as they were two-hundred years ago. Judicial independence serves as a check
against majority oppression. The rights of the minority must be protected and
the majority cannot be trusted to do this. If these amendments were adopted, we
might find that we have traded a government by 'udiciary for an oppression by
the majority. There is no need to tinker with our constitutional system. Before
admitting defeat, before admitting that judges will be activist and stripping
courts of their independence, we should try a simple solution. Simple judicial
reform coupled with aggressive use of advice and consent.
III
Reform will work in the short run, but in a democracy only the citizens can bear
the burden of change in the long run. Neither Congress nor the judiciary can
bear the sole blame for today's judicial activism. Judicial overreaching is
human nature. While judges should avoid it, they are not expected to discipline
themselves. Nor is congressional failure to discipline thejudiciary solely the
fault of our representatives. Our elected legislators respond to the will of the
people.
We are to blame for the judiciary's activism. Our modern distrust of politicians
has lead us to doubt whether legislatures are the best equipped to solve our
social ills. This flight from legislatures has turned into a stampede to courts
as an alternative. Both lawyers and lay people imagine, more and more, that the
judges are best equipped to direct our actions and cure our social ills.
Those seeking social change today lobby courts and ask them to be activist. In
the past, those seeking social change lobbied Congress and the Executive.
Women's suffrage, for example, was won through the hard work and efforts of
those who lobbied and obtained the passage of the Nineteenth Amendment. Modern
advances in women's rights, by contrast, often have come from the
Judicial Activism and Self-Government
judiciary. Justice Ruth Bader Ginsberg admitted as much in a recent speech at
the University of Virginia's commencement. AI would still like to have [the ERA]
as a symbol . . . for my granddaughter, the Justice remarked, but it doesn't
really matter because A [t]here is no practical difference between what has
evolved and the ERA. ,3 1 In other words, the courts found the ERA within the
spirit of the Constitution. While the result is just and correct, it would have
been far better for modern women's rights to be gained through the democratic
process that brought about suffrage and not by judicial grace or fiat.
Public education is thus the only way to reduce judicial activism in the long
run. We must change our actions. We must learn civics. We must understand that
preserving the structure of our government and the separation of powers is more
important thananysingle'udicialdecision. Separationofpowersisessential to
protect our most fundamental right-the right to selfgovernment.
We must also exercise citizenship. We must elect leaders whom we trust and who
will protect our system of separation of powers. We cannot abdicate this
responsibility by relying on the judiciary to cure our social ills. Even those
who like the results of the judiciary's present decisions must recognize that
though they may now prefer the whims of unelected judges over the will of the
peoples' elected legislators, times change and they may find themselves
suffering under the next set of whims of an imperial judiciary. We must require
and support our elected leaders' attempts to curb a runaway judiciary.
American citizens today face a challenge. We hold our liberty
in our hands. If we strive to protect the structure of our
government, if we defend and encourage Congress to protect us
againstjudicial tyranny then liberty will survive. But if we allow
apathy to continue, or take a myopic view by asking the judiciary to grant us
what our elected officials will not, then one day we may find that we have
subtly lost self rule and we are living under a government by judiciary.
Notes
1. See The Unabridged Random House Dictionary of the English
Language (Random House 1987), 377.
2. Coalitionfor Economic Equity v. Wilson (9" Cir. 1997), 1 10 F.3d
1431, 1437.
3. Missouri v. Jenkins (1990), 494 U.S. 33, 77 (Kennedy, J.,
concurring).
4. William Pryor, Attomey General of the State of Alabama, Judicial
Activism: Assessing the Impact: Testimony before the Subcommittee on the
Constitution, Federalism & Property Rights, 105" Cong., I' Sess. 2 (July 15,
1997).
5. Patrick Boyle, Judicial Activism: Defining the Problem and its
Impact: Testimony before the Subcommittee on the Constitution,
Federalism & Property Rights, 105th Cong., I Sess. I (June II, 1997).
6. Id.
7. C. Boyden Gray, Judicial Activism: Defining the Problem and its
Impact: Testimony before the Subcommittee on the Constitution,
Federalism & Property Rights, 105" Cong., I' Sess. 3-5 (June 11, 1997).
8. Id.
9. Id.
I 0. Id.
II. Orrin G. Hatch, Judicial Activism: Defining the Problem and its
Impact: Statement before the Subcommittee on the Constitution,
Federalism & Property Rights, 105" Cong., I Sess. I (June 11, 1997).
12. Orrin G. Hatch, Remarks Before the Federalist Society's 10'
Anniversary Lawyers Convention (Nov. 15, 1996), 5.
13. Brutus, The Supreme Court: They Will Mould [sic] the Government into Almost
Any Shape They Please ( ABrutus Xf'), New York Joumal (Jan. 3 1, 178 8)
reprinted at The Debate on the Constitution Part H (The Libraiy of America
1993), 129.
14. Id. at 134.
15. Id.
Judicial Activism and Self-Government
16. Brutus, On the Power of the Supreme Court: Nothing Can Stand Before It ( A
Brutus XIT'), New York Journal (Feb. 7 and 14, 1788) reprinted at The Debate on
the Constitution Part H (The Library of America 1993), 171-3.
17. BrutusXIat 129, 135.
18. Alexander Hamilton, Federalist No. 78 (May 28, 1788) reprinted at
The Debate on the Constitution Part II (The Library of America 1993),
471 (emphasis in original).
19. Id.
20. Id. at 486-87.
21. Orrin G. Hatch, Address before the Utah Federalist Society, 1997
WL 4429673 (Feb. 18, 1997), at * 13-14.
22. Id. at * 13-14.
23. S. Rep. No. 94-204, 94' Cong., 2 nd Sess. (1976).
24. Pub. L. No. 104-134, 1 1 0 Stat. 1321 ' ' 801-8 1 0 (Apr. 26, 1996).
25. Robert H. Bork, Slouching Towards Gomorrah: Modern Liberalism
andamerican Decline (Regan Books 1996), 117.
26. S.J. Res. 26, 105" Cong., I' Sess. (1997).
27. Federalist No. 78 at 472.
28. Id.
29. Id.
30. MaryAnnGlendon,ANationunderLawyers:HowtheCrisisinthe Legal Profession is
Transforming American Society (FwTar, Straus & Giroux 1994). See also Robert H.
Bork, The Tempting of America (Touchstone Books 1990), 3.
3 1. Anita K. Blair, AHow We Got the ERA, Women's Quarterly, No.
I 1, Spring 1997, at 6 (quoting Ruth Bader Ginsberg, J.).
60 Header A
32. Id.
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