The Burger Court in Historical Perspective
Every court is the product of its time and reflects the predilections of fallible men in black robes. Whatever the orientation of conflicting values, judicial activism involves a paradox at the heart of constitutional orthodoxy: the Supreme Court considered as the mouthpiece of self-interpreting, self-enforcing law.1 While wearing the magical habiliments of the law, Supreme Court justices take sides on controversial issues. In a moment of judicial candor, Justice Robert H. Jackson remarked: "We are not final because we are infallible, but we are infallible only because we are final."2 Even those inclined to think of the Supreme Court as "brushed with divinity" do not accept constitutional theology at face value. Few Americans were shocked in 1968 when the GOP presidential candidate made the Court a major political issue, and bluntly announced his determination to restore "law and order" by changing