The Supreme Court and Its Critics

by JUDGE IRVING R. KAUFMAN

FOR those of us who have lived through the Great Depression and the early years of the New Deal, criticism of the Supreme Court of the United States can hardly be thought novel. The Court of the early thirties, conservative and dogmatic, was enough to pique the most patient observers. Today, more than at any time since then, the role of the Supreme Court in a democratic society has been the subject of a searching, often hostile, popular scrutiny.

The frequency with which decisions are rendered by a divided Court is not surprising. Before a case can reach the Supreme Court, it must have failed to be resolved by the mechanism of private adjustment and have been forced into the arena of litigation; a trial judge will have passed upon the problem and have had his judgment reviewed by one or more panels of judges of the intermediate appellate courts, who often find themselves in serious disagreement; and the justices of the Supreme Court, who to a large degree have control over the cases they will hear, will have thought that the problem merits the painstaking and time-consuming consideration of the highest court of the land. This filtering process tends to bring before the Supreme Court not only the most perplexing problems of public law, but also problems of broad-ranging application, affecting far more than the individual litigants directly interested in the outcome of a particular case.

But perhaps most conducive to a vigorous and often unkindly public reaction to the work of the Court is the fact that questions of public law frequently concern questions of morals, involving the balancing of the needs of society or government as a whole against the asserted rights of the individual citizen. When a prisoner’s conviction is overturned because a confession made by him and introduced in evidence at his trial is shown to have been the fruit of physical or psychological coercion, the Court expresses the moral judgment that it is wrong that police lawlessness should be employed as a means of rooting out lawless individuals. When the recitation of a prayer of sectarian origin, compelled by state legislation, is declared improper, the Court expresses a moral judgment: it is wrong for an individual to be deprived of the responsibility for choosing whether or not he will worship and the precise form which his worship will take. These cases are merely illustrative of the great questions of political morality, answers to which, even if not always accepted by the lay public, truly separate the free nation from the slave.

To accuse the Court of improperly reading morality into the Constitution is to misunderstand its function; for that document embodies vaguely worded ethical injunctions, which the Court is given the responsibility of interpreting. The Constitution provides that an individual must be rendered due process of law and extended the law’s equal protection. But in the relationship between man and government, the determination of what process is due is of a different order from the determination of when payment of rent is due; and the equality of the equal-protection clause is rather less precise than the concept of equality in Euclidean geometry.

In recent years, the Court has extended the reach of these proscriptions to areas previously believed outside the pale of federal judicial authority. Institutional considerations, formerly invoked to limit the Court’s jurisdiction, have been subordinated or ignored in the Court’s attempt to reassert fundamental values and apply them to the solution of the nation’s most pressing problems. Thus, for example, the Court has rejected Justice Frankfurter’s eloquent warning that a judicial body is ill equipped for the “clash of political forces” and should not inject itself into controversies concerning legislative apportionment. On the other hand, in the area of criminal law, matters formerly left to local discretion are now being regulated by federally imposed standards.

I believe that the Court sees at least two significant roles for itself in its expanded sphere of activity. In the cases involving reapportionment and school segregation, the Court has apparently attempted to express the will of a popular consensus which has been frustrated in its resort to more traditional political instrumentalities. Despite the forcefulness of Justice Frankfurter’s appeal, it was precisely the inability of the electorate to achieve adequate and effective representation in a gerrymandered legislature which brought the apportionment cases to the courts. Similarly, in the segregation cases, it was precisely the failure of local officials to comply with nationally accepted standards of equality which compelled federal judicial intervention.

In the recent school-prayer decision and the spate of criminal procedure cases, however, the Court has appeared to venture a broader and even more controversial undertaking: it has attempted to perform an educative function — to shape, rather than reflect, a popular consensus. Woodrow Wilson, while professor of political science at Princeton, wrote a treatise on congressional government in which he depicted Congress as the prime national institution of political education. Today, the Supreme Court seems to have assumed that role, and it has been argued that the Court is well equipped for the task by virtue of its political insularity, its storehouse of time for research and reflection, and its responsibility to articulate constitutional principles and to persuade by reason rather than fiat.

Yet the specter of the early New Deal Court, hopelessly out of tune with the spirit of the times, should make us seriously ponder the questions raised when an appointive federal body attempts either to gauge and give force to popular sentiment or affirmatively to lead that sentiment along lines thought more in accord with fundamental constitutional verities. It is my purpose to consider some of the Supreme Court’s recent decisions, or “teachings,” in the field of public law and political morality, so that such questions may be better understood.

LEGISLATIVE APPORTIONMENT

A constant feature of American life since before the turn of the century has been the population shift from rural to urban and suburban communities. This shift, accompanied by a laxness in redrawing political boundaries, has in the great majority of states led to inordinate voting weight in the rural areas. A remedy for this political imbalance is usually difficult to find, for the very political forces within the state which can act as a corrective are themselves tainted if not created by the illness.

The constitution of at least one state, Tennessee, provides that state representatives and senators be apportioned among counties every ten years on the basis of population; no such reapportionment has been undertaken by the legislature since 1901. Sixty years later, an action was brought to overturn the existing scheme of apportionment, which gave to 37 percent of the voters of Tennessee the power to elect twenty of the thirty-three state senators, and to 40 percent of the voters the power to choose sixty-three of the ninety-nine members of the House. The federal trial court dismissed the complaint outright, relying on a number of Supreme Court cases which suggested that a court was not the appropriate body to rectify such matters and that relief would have to lie with the legislature or with other purely political devices that are in the hands of the public.

The case made its way to the United States Supreme Court, which held that the action was improperly dismissed. It is possible, said the Court, that numerical disparities among a state’s electoral districts may be so irrational and so grievous as to work a denial of that equal protection of the laws guaranteed its citizens by the federal Constitution. The Court did not determine how irrational or grievous the political imbalance would have to be before it could be deemed a deprivation of constitutional rights; nor did it clarify what steps a court could take to remedy that deprivation. The Court will confront these issues in subsequent cases. But, by thus leaving the problem open-ended for some two years, the Supreme Court has initiated a political debate in every corner of the nation.

So profound was the problem, so urgently was a solution required, that the Court was willing to enter what Justice Frankfurter called the “political thicket” and risk the sacrifice of much of its reputation for political detachment in order to vindicate a moral conviction deeply felt. This conviction is at the root of what has been called the Court’s “double standard” of individual freedoms. The Court has at least implicitly conceded that there is a special class of rights which merits the most zealous protection by the judiciary; these are the rights through which political opinions may be freely and intelligently developed and expressed. Thus, freedom of speech or of the press is a necessary incident to the sound functioning of a democratic form of government, for the free exercise of such rights can be instrumental in correcting any impurities in our democracy. A government which suppresses free speech on matters political impedes the dissemination of ideas and criticism essential to responsive and responsible leadership.

Similarly, the First Amendment to the Constitution guarantees the right to petition the government for redress of grievances. Although this provision has rarely been a source of public concern, the recent movement for racial equality, employing peaceful picketing and orderly demonstrations, has brought it to the fore. The President, by defending the right of minorities to call their grievances to the attention of the government by peaceful methods, has implicitly recognized that this is one of our “preferred” freedoms.

The rights in issue in the legislative apportionment cases are of the same order. An apportionment device which weights the vote of a white citizen more than that of a Negro, or of a man more than a woman, would be patently unconstitutional, as an intolerable clot in a political system which should function so as to be responsive, impartially, to an educated electorate. How, then, asked the Supreme Court, “can one person be given twice or ten times the voting power of another person in a state-wide election merely because he lives in a rural area or because he lives in the smallest rural county?”

Yet even here legal scholars have expressed grave doubts as to the propriety — indeed, the capability — of a judicial body to engage in such traditionally nonjudicial activity as telling state legislatures how to go about drawing political boundary lines. The Court’s intellectual arsenal, its reason and judgment, is said not to be equipped to deal with the statistical data, the historical oddities, and the traditional political influences which go to make up that unique area of human affairs known as state politics. But in this area, the gravity of the problem and the absence of alternative solutions were determinative. As one member of the Court noted, “[TJhe people of Tennessee are stymied and without judicial intervention will be saddled with the present discrimination in the affairs of their state government.”

It is fair to assume that the Court was aware that its decision would be supported by a broad consensus of opinion throughout the nation. The vox populi is never far from the Court’s ear; indeed, the Court would have agreed with Justice Frankfurter’s admonition that its authority “ultimately rests on sustained public confidence in its moral sanction.” But, unlike their dissenting brother, the majority of justices must have been confident that the Court’s moral sanction would not be tarnished by this particular entry into the political thicket. And, despite the experts’ fears, the lower courts — both federal and state — have risen to the challenge of lawsuits attacking the apportionment structure in more than half of the states and have apparently survived unscathed. Wherever possible the courts have merely admonished the legislatures and encouraged them to draw the new political boundary lines themselves; only as a last resort have the courts stepped in and directly engaged in the art of political cartography.

EDUCATIONAL SEGREGATION

To the lawyer the school-segregation decision was not as much of a thunderbolt as was the Tennessee reapportionment case. Indeed, its legal antecedents rendered the Court’s decision somewhat predictable. In 1938 and again ten years later, the Court held that a state could not deny an individual the right to secure a law school education within that state merely because of his color. In 1950, the Court went further, holding that the quality of education at a small law school established exclusively for Negroes could not be deemed substantially equal to that offered at the state law school. Differences in such intangible factors as “reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, and traditions and prestige” were sufficient, the Court asserted, to require that the state permit a qualified Negro to attend the formerly all-white state law school; otherwise, the state would not be affording its citizens “equal protection of the laws” as required by the Fourteenth Amendment to the federal Constitution. And even admission of a Negro to a graduate school would not necessarily discharge the state’s constitutional responsibility. In another case, the Court ruled that the state could not require a Negro to occupy a special seat in the classroom in a row reserved only for Negroes, a special table in the library, or a special location in the cafeteria.

In the 1954 segregation case, the Court expressly and unanimously abandoned the “separate but equal” doctrine, holding that state-enforced separation of the races in education is in and of itself an unequal application of the laws and therefore unconstitutional.

Since then, we have come to learn that discrimination or separation in almost any form of state or municipal enterprise — traveling facilities, playgrounds, and the like — is unconstitutional. But it is significant that the breakthrough came in the area of educational opportunity, for this seems to me to fall squarely within that category of preferred freedoms discussed previously. Does not our democratic system of government really rest upon a belief in an educated and enlightened electorate, apprised of political and social problems and capable of an intelligent choice of means in their solution? If educational opportunity or access to a free and fair ballot is stifled, does not the underpinning of democracy become that much less stable?

The Court’s moral commitment to what I have called the preferred freedoms was here mirrored in the elemental sense of fairness among most citizens of the nation, and the Court could therefore withstand the attacks of those critics who charged that its opinion was an unprecedented foray into the sociological rather than the legal and an inexcusable interference with states’ rights.

And, as has been suggested, the Court was seemingly impelled into action largely by the inability of any other institution to correct what it deemed to be a grave injustice. Long experience had shown that the two great political branches of the federal government were slow to act in the field of civil rights. And access to the delinquent state governments in question was effectively foreclosed by the existence of the very conditions whose constitutionality was challenged: educational, social, and political inferiority, governmentally created and perpetuated. Once again, the Court, if not the ideal agency to settle the problem, was the only branch of government able to lead the way to an effective solution.

RELIGION IN THE PUBLIC SCHOOLS

The interplay between Court and public on the religious issue makes a fascinating chapter in our recent political history. And the violence of the outcry aroused by the Court’s decisions was hardly surprising. To a large extent, the opinions were misunderstood, at least partially owing to the tendency of the mass media to communicate, and the public to learn of, only the barest outlines of the decisions. Headlines screamed: “Religious Prayer in Schools Prohibited !” “Lord’s Prayer and Bible Reading Outlawed!” The Court’s careful reasoning, its historical analysis, its philosophical underpinning were generally ignored. Very few realized that the Court, in prohibiting compulsory devotional exercises, did so in the context not of irreligion but of our heritage as a religious nation.

Perhaps another reason for the enraged response to the 1962 Regents’ Prayer decision stems from a partial failure of the Court to fulfill properly the educative role it set out to play. The prevailing tone of the opinion was one of proscription, with a corresponding failure to emphasize the limitations of the decision. By stressing the proscribed and underplaying the allowable, the Court seemed to fashion its opinion primarily for the legal community and not so much for the community at large.

Finally, the uproar regarding the first prayer case is quite understandable when we realize that it was, indeed, the first noteworthy case of this generation in which a common and seemingly innocuous religious practice was overturned. The older generation might have remembered that some twenty years earlier the Supreme Court declared invalid, upon the suit of Jehovah’s Witnesses claiming interference with their religious freedom, a state law requiring the recitation of the flag salute and exacting punishment for noncompliance. The public’s memory is, however, short.

It is interesting that by the time the Bible-reading and Lord’s Prayer decisions were handed down, a year after the Regents’ Prayer case, many of the sources of public misunderstanding had been eliminated. Popular reporting of these opinions appeared to be somewhat more responsible and comprehensive. And this was largely due to the tone of the Court’s opinions themselves. Written much more with an eye toward public perusal and in anticipation of public criticism, the opinions drew with greater clarity the line between the proscribed and the permitted.

[I]t might well be said that one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistent with the First Amendment.

All who read the later opinions were aware that the Court was taking pains to emphasize that its decision was founded upon a profound appreciation of this nation’s religious heritage, but that this was a heritage of private religiousness.

The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard.

The sentiments expressed by Justice Clark, a Protestant, speaking for the majority of the justices in the Lord’s Prayer and Bible-reading cases, were echoed in the concurring opinions of Justice Brennan, the one Roman Catholic on the Court, and Justice Goldberg, the one member of the Jewish faith. It was Justice Goldberg who, again emphasizing the limited nature of the Court’s decision, noted that

it seems clear to me from the opinions in the present and past cases that the Court would recognize the propriety of providing military chaplains and of the teaching about religion, as distinguished from the teaching of religion, in the public schools.

If the Court was trying to instruct the American public in a matter of political morality which touches the conduct of our everyday life, it seems, on the whole, to have succeeded. The Court, quite accustomed to receiving letters from a critical public, was met by a flood tide of letters after it rendered its decision in the Regents’ Prayer case in the summer of 1962. Word has it that the critical mail following the 1963 decisions was minimal. Public commentary, on the whole, was more moderate in tone. There are still protestations, but they seem directed more at what it is believed the Court said than at what it in fact did say. Most state governments, still properly concerned with respect for law and with establishing an appropriate balance between government and religion as explicated by the Court, are responsibly formulating programs of silent meditation and of secular instruction in the history of religion and in the development of our great historical and religious literature.

The widespread public dialogue touched off by the Court’s opinions has, to my mind, been salutary. It is fairly safe to say that an outgrowth will be a greater understanding, by the schoolchild as well as his parents, of the role of religion in family, society, culture, and history.

But if much is gained when the Court takes a broadened view of its function and ventures into areas not previously deemed within its special competence, we must also bear in mind the dangers present. At the last convention of the American Bar Association, Justice Harlan cautioned against the “subtle capacity for serious mischief” contained in the view “that all deficiencies in our society which have failed of correction by other means should lind a cure in the courts.”

Such a warning seems particularly apt in the context of the school-prayer cases. For in its eagerness to pass upon the question of religion in the public schools, the Court has relaxed requirements of “standing” which have traditionally limited the type and number of problems which the Court is called upon to decide. “Standing” rules, requiring that the parties involved possess a certain minimum interest in the subject matter of the litigation and the relief sought, are designed to ensure that the Court will not be confronted with purely abstract, quasi-legislative questions brought by citizens seeking to vindicate the public good, rather than with a concrete dispute between particular individuals. Injuries to society as a whole are felt the concern of the legislative and executive branches of government; judicial resources are thought better equipped to pass upon specific individual and real grievances.

Some years ago, the Court did dismiss an appeal in a school-prayer case, on the grounds that the young students had already been graduated from school and that the individuals suing in their behalf, although taxpayers, had not shown themselves to have a discernible financial interest in the outcome of the litigation. In the religious cases of 1962 and 1963. however, the parties were schoolchildren presently being subjected to the challenged religious programs and the parents of those children. The Court found the distinction determinative, concluding that all parties were “directly affected by the laws and practices against which their complaints are directed.”

Yet one wonders whether this was a distinction without a real difference. Especially when it is remembered that the Court did not stress the coercion of particular pupils but instead condemned the religious practices as an “establishment of religion,” it is difficult to pinpoint the injuries suffered by specific individuals. Rather, if any injury was involved, it would seem one to society as a whole; and hence the problem of religion in the public schools may tend toward the sort of broadgauged, loosely defined issue that the courts have traditionally been advised to avoid.

CRIMINAL JUSTICE

There is, of course, one area in which the Court’s activity is most familiar: the administration of criminal justice. Most fundamentally, the Court must determine how best to satisfy society’s need for protection against crime and at the same time accord to all accused individuals every procedural fairness. In the Middle Ages, the accused would be subjected to an ordeal, such as walking across redhot irons, as a test of his innocence. The modernday analogue would be the confession coerced by the rubber hose or by more subtle methods of physical and psychological pressure.

We have long known that social peace is not to be purchased at the price of tyranny. But cannot the courts err if they indulge themselves in too great a solicitude for the accused criminal? If, for example, we exclude from a criminal trial evidence of narcotics or of a deadly weapon seized from the accused without a search warrant, do we not give procedural niceties unwarranted supremacy over society’s fair concern for the apprehension and detention of criminals? In the words of Judge Cardozo, ought we to permit a criminal to go free simply because the constable blundered?

Such are the vexing moral questions which confront our courts of law. The public is, almost in the very nature of the case, biased in outlook. Solicitude for the accused in a criminal case is not, I daresay, one of the hallmarks of our national conscience. The people are inclined to seek vengeance, especially when a heinous offense has been committed. Indeed, there is little solicitude displayed when they stigmatize an attorney for his defense of an unpopular client or an unpopular cause, even though such a defense is in the best tradition of the Constitution and the bar.

All too many believe that it is the sole function of the prosecutor to secure convictions. In truth, his function is to see that justice is done, even if this means aiding in the acquittal of the innocent. We have viewed in our lifetime the perversion of the criminal process, characterized by summary trial and unspeakably harsh and summary punishment in totalitarian countries. This is a message which should not be lost on us. And the Supreme Court has set the theme: “The methods we employ in the enforcement of our criminal law have aptly been called the measures by which the quality of our civilization may be judged.” The Court, in the past few years, has devoted itself to implementing this profound statement of principle.

Admittedly, public opinion on these issues is not articulated to the degree noted in the areas of racial segregation and of religion in public education. And there are hints that the Supreme Court’s decisions on the problems of criminal justice might well merit great publicity among the public, for one fears they have fallen on deaf ears. In a speech delivered before the American Bar Association, Justice Brennan cited a survey of American high school students which revealed that more than one third condoned the use of third-degree police methods. The fact that these are the students schooled for tomorrow’s leadership is hardly consoling.

In the last five years, we have observed a gradual but determined effort on the part of the Court to establish fixed rules of law by which police, prosecutory, and judicial agencies — state as well as federal — must abide when enforcing the criminal law. In effect, there has been a swing of the pendulum from state laissez-faire in matters of criminal justice to a more uncompromising control by the Supreme Court and the federal courts generally in certain areas of political morality.

The field in which such a shift has been most evident is that dealing with the use in a criminal trial of evidence secured by the police by means of an unreasonable and unlawful search or seizure. Roughly half a century ago, the Supreme Court decided that such tainted evidence should be excluded from criminal trials in the federal courts. This was not deemed a dictate of the Fourth Amendment to the federal Constitution, which bars unreasonable searches and seizures on the part of the federal government, but a means of controlling the fair conduct of trials within the federal judicial system. For this reason, courts of the individual states were not compelled to exclude evidence which, although unlawfully seized, could generally be of probative value in the case for the prosecution. In 1950, the Court ruled that the constitutional proscription of unreasonable searches and seizures did apply to the states, but held that exclusion of the illegally procured evidence was not a required method of enforcing the ban. Finally, in 1961, the Court, perhaps sensing the anomaly of its permissive position and noting the trend among more than half of the states toward voluntarily excluding such evidence, reversed the position taken only a decade earlier and held that the exclusionary principle was binding upon the states as a matter of due process of law.

A similar development may be traced in the Court’s treatment of the right of an accused to secure court-appointed counsel. For many years, the Court was universally understood to say that a criminal defendant without financial means had a right to an attorney appointed by the state only when conviction brought with it the possibility of a death sentence. In noncapital cases, due process of law was thought to require the appointment of counsel only in special circumstances, such as when the age, education, and mental condition of the defendant were so deficient as to warrant the conclusion that he would not be able to conduct his own defense competently.

Neither the effect nor the logic of the Court’s distinction was wholly satisfying. Many individuals, thoroughly incapable of conducting an adequate investigation before trial (generally, they were imprisoned during this crucial period) or unable to interview witnesses and to prepare and conduct their own trial, were forced nonetheless to joust on the awesome question of guilt or innocence with the overpowering forces of the prosecutor’s office. It does not tax the imagination to observe that under such conditions the struggle to secure justice becomes lopsided. It was difficult to perceive, moreover, the reason for the capital-noncapital distinction. Why was “due process” denied when no counsel was appointed in a case involving the threat of capital punishment, although it was thought amply accorded when no counsel was appointed in a case involving the possibility of a severe sentence of imprisonment? The Constitution has always required that there be due process of law before one is denied life or liberty.

These questions were extremely troublesome, so much so that federal courts, to a degree responsible for overseeing the fairness of trials in state courts, increasingly discovered from case to case those “special circumstances” which in a noncapital case necessitated the appointment of counsel for the indigent defendant. State governments also became increasingly aware of their own frontline responsibility and passed laws providing for the appointment of counsel in all criminal cases and for the establishment of legal aid societies and public defender organizations. And, finally, in its past term, the Supreme Court re-examined this troublesome area and discarded the capital-noncapital distinction. It ruled that all defendants are entitled by the Constitution to representation by counsel in criminal trials in the state courts. In the case in which the Court set down this principle, the state conviction of the defendant was overturned and a new trial permitted, at which the accused was to be accorded the right of appointed counsel. The way of legal history was somewhat poetic in this case; for, although convicted some years earlier after a trial at which he was forced to represent himself, the defendant, now represented by counsel, was able to secure an acquittal.

Enough has been said to illustrate the point that the Supreme Court, in establishing the rules of fair play by which an individual is tried, engages in a figurative dialogue with centers of local government and with the public at large, often reflecting current trends of thinking, often initiating those trends. And there are many questions still to be answered. To what extent, for example, should the federal judicial system interfere with the conduct of state law enforcement agencies and with the administration of the fifty individual systems of state criminal law? Even more pressing is the question of retroactivity. For when the Court determines that formerly acceptable methods of conducting criminal trials can no longer be considered “due process,” what should be done with the individuals tried, convicted, and imprisoned under the ancien régime of legal principles? The Court has thus exposed itself to the criticism that, in being overzealous in safeguarding the rights of the criminally accused, it has not been sufficiently mindful of the institutional demands of our bifurcated federal system and of finality in litigation. The Court’s message in the recent past — as revealed in the apportionment and segregation cases, as well as the cases involving criminal procedure — is that institutional imperatives such as these are clearly subordinate to the moral imperatives embedded in our Constitution. The members of the Court apparently are of a mind with the English judge who once noted, “Finality is a good thing; but Justice is even better.”

It is, of course, difficult to quarrel with such a sentiment. Yet if the decisions which we have reviewed truly reflect the philosophy now prevalent among the majority of justices of the Supreme Court, we might rephrase the notion to read. “Judicial self-restraint is a good thing; but immediate cures for society’s ills are even better.” And as to this proposition, all will agree that there is room for debate.

It is always pleasing to have our problems solved for us. Indeed, many of the Court’s opinions effectuate substantive solutions with which few can quarrel. But, as Justice Harlan has warned, we should be wary of relying upon the Court to settle all our vexing problems, particularly questions which are more properly within the province of the legislative or executive branch of government; of shirking our duties as citizens to resolve the problems which beset society at the ballot box and of acting rather as spectators to the actions of a judiciary which is appointed for life.

In short, we must never forget, in our eagerness to find answers to troubling social problems, that at least on some occasions the means by which a society resolves its difficulties will have a far more enduring importance than the immediate solutions themselves. In any event, as the Court well knows and as its decisions vividly demonstrate, judicial solutions in a dynamic society such as ours are rarely eternal; and today’s “settled law” may tomorrow be transformed in a way which is most unsettling to the Court’s lay critics.