Cox, Archibald

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Maryland Law ReviewVolume 47 | Issue 1 Article 25Cox: Response to CommentsArchibald CoxFollow this and additional works at: http://digitalcommons.law.umaryland.edu/mlrPart of the Legal History, Theory and Process CommonsThis Article is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted forinclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contactsmccarty@law.umaryland.edu.Recommended CitationArchibald Cox, Cox: Response to Comments, 47 Md. L. Rev. 169 (1987)Available at: http://digitalcommons.law.umaryland.edu/mlr/vol47/iss1/25RESPONSE TO COMMENTSARCHIBALD COXThere are just two points that I shall address. First, I think thatProfessors Tushnet and Brubaker both pointed to a confusion forwhich I am at least, for tonight, partly responsible. When I referredto the word "activism," I did use it to embrace two quite differentmeanings.One meaning is that of overruling majoritarian decisions-lackof deference, if you will. The second meaning involves changing thelaw from that written in the books, from that discoverable by read-ing what Judge Learned Hand used to call "these books about us."I associate the two because the more a judge substitutes his judg-ment, or a Court substitutes its judgment, for that of the legislature,the larger the judge's role and the more active the judge's role inthe total pattern of government.Second, the more courts depart from the law in the books andprecedent to writing new rules, again, the more they enlarge theirroles as individuals in the government. What brings these eventstogether in my mind is that both tend to raise questions about thejudges' legitimacy. Specifically, each in its own way raises the ques-tion whether judges are exceeding their function and thus in dangerof losing legitimacy. And, as I have said many times, that is a veryimportant consideration in my mind, because it is only that whichwill make the courts Madison's bulwark against oppression.In addition, I cannot resist saying just a word about the boywho killed his parents who is said to have pleaded for mercy on theground that he was an orphan. I don't think that was the plea of thislittle boy. I think the plea of this little boy was: While I killed myparents, and now you've got the gun, please don't go around shoot-ing all the sisters, cousins, uncles, and aunts. I know the cause ofkilling people; I think what we should do is to stop doing it.In other words, it seems to me that maybe those who defendsome, if not all, of the decisions of the Warren Court are not themost persuasive voices calling for a low judicial profile and judicialrestraint in the future. But, on the other hand, they are entitled tosay: "Don't you go in your own way." Indeed, Professor Morgancame back pretty close to this position in the end.Lastly, I want to emphasize, lest we forget, how well the Courthas endured the passage of these 200 years. I spent so many days170 MARYLAND LAW REVIEW [VOL. 47:169sitting in the Supreme Court building before the Court, wonderinghow those men-and now, those men and that woman-manage tofunction at all with the range of extraordinarily difficult problemsthat they deal with day after day. Really, the fact that they functionat all is an extraordinary tribute to both the institution and the Jus-tices who sit, and have sat, upon it.

Cox: Response to Comments

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