A case in point is the June 1998 amendment to the 1996 welfare act, extolled by Myron Weiner, Muzaffar Chishti, and others. Jennifer Gordon proposes that immigrants be given some participatory rights, but such reforms are unlikely to preclude results such as those embodied in the 1998 or 1996 statutes or to transform politics into, borrowing Ronald Dworkin's phrase, a forum of principle. Judges are, as John Ely once reminded us, people, and suffer all the human foibles. The exercise of the judicial power is limited, however, by certain procedural norms that have no counterpart in politics. I refer here not just to the independence of the judiciary from the will of the electorate, so uncharitable these days, but also to the requirements that judges must respond to grievances that they might otherwise prefer to ignore, hear from all aggrieved parties, assume individual responsibility for their decisions, and justify their decisions in terms of publicly accepted norms.
Judges engage in a special dialogue with the public.
Through this dialogue they achieve a certain distance from their personal proclivities and come face to face with what Mark Tushnet might call universal reason. Sometimes this faith in reason proves justified, as it did one bright and sunny day in 1954. The exercise of judicial reason in Brown v. Board of Education did not, reading Robin West's fears back into history, divest the political agencies of responsibility. Rather, it acted as a catalyst, a call to action, to which all the nation, including the President and Congress, responded, first to enforce that decision and then to extend it. The 1960s were marked by a coordination, rather than a separation, of powers and the Court was very much at the helm, though no one should slight the contribution of various political agencies or ordinary citizens, who often took to the streets or voiced their grievances in the halls of justice or before the bar of politics.