DRAFT Please do not quote or cite without written permission decide also gave the polity some assurance against programmatic judicial lawmaking. The parties chos the disputes, not the courts; the necessary force of the court's decision was limited to the material facts of the case before it, the facts of the next case, uncontrollable by the judges, might well compel a conclusion looking in quite the opposite direction from its predecessor. Common law development was in this sense the product of an invisible hand, if you like, that ineluctably provided corrections to doctrinal drift in one directionby generating the facts and disputes that would illustrate its dangers. The " work of modification, Benjamin Cardozo remarked in his famous lectures on The Nature of the Judicial Process, goes on inch y inch. Its effects must be measured by decades and even centuries. Thus measured, they are seen to have behind them the power and the pressure of the moving glacier. They grow out of repeated exposures to fact and perspective, exposures over which the judiciary had little control Justice Holmes, in an oft-cited dissenting passage, framed this understood authority in a way that highlighted its subsidiary character: I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions. A common-law judge could not say I think the doctrine of consideration a bit of historical nonsense and shall not enforce it in my court. No more could a judge exercising the limited jurisdiction of admiralty say I think well of the common-law rules of master and servant and propose to introduce them here en bloc. I The necessity of the case, within the pre-existing general framework, set the confines within which judges could act and, in acting, further confine those whose judgment would follow after theirs How different the judicial function has become since the Judges Bill created a power to choose which matters our highest court would hear! Decision is no longer a necessity, nor new law merely its by product. A court with certiorari authority is not merely able, but is expected, to choose its targets with reference to what law seems most important to enunciate. Having thousands of petitions from which to select, say, 100 controversies for decisionenables judges to have agendas. It encourages them to spe more broadly than the particular facts before them require counsel against that as we may 3 It permit them to defend themselves against the inconvenience of facts that might appear to compel movement opposite to the direction they prefer. And, thus, it inevitably heightens our sense that in appointing judges we are appointing lawmakers and should be concerned with the kinds of law they are likely to make Freed from the discipline of the unavoidable call of justice, lured by the opportunity, perhap 10 Lecture I. following n. 19 I Southern Pacific Co. v. Jensen, 244 U.S. 205, 221(dissent; 1917) 12 Numbers from the last Term in paid and pro bono dockets, HLR Cass Sunstein, Leaving Things Undecided, 1 10 Harv. L Rev. 4(1996)and One Case at a Time 10-11 and Ch (1999DRAFT Please do not quote or cite without written permission 10 Lecture I, following n. 19. 11 Southern Pacific Co. v. Jensen, 244 U.S. 205, 221 (dissent;1917). 12 Numbers from the last Term in paid and pro bono dockets, HLR. 13 Cass Sunstein, Leaving Things Undecided, 110 Harv.L.Rev. 4 (1996) and One Case at a Time 10-11 and Ch. 9 (1999). -5- decide also gave the polity some assurance against programmatic judicial lawmaking. The parties chose the disputes, not the courts; the necessary force of the court’s decision waslimited to the materialfacts of the case before it; the facts of the next case, uncontrollable by the judges, might well compela conclusion looking inquite the opposite direction from its predecessor. Common law development was in this sense the product of an invisible hand, if you like, that ineluctably provided corrections to doctrinal drift in one directionbygenerating the facts and disputesthat would illustrate its dangers. The “work ofmodification,” Benjamin Cardozo remarked in his famous lectures on The Nature of the JudicialProcess, “goes on inch by inch. Its effects must be measured by decades and even centuries. Thus measured, they are seen to have behind them the power and the pressure of the moving glacier.”10 They grow out of repeated exposures to fact and perspective, exposures over which the judiciary had little control. Justice Holmes, in an oft-cited dissenting passage, framed this understood authority in a way that highlighted its subsidiary character: I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined frommolar to molecular motions. A common-law judge could not say I think the doctrine of consideration a bit of historical nonsense and shall not enforce it in my court. No more could a judge exercising the limited jurisdiction of admiralty say I think well of the common-law rules of master and servant and propose to introduce them here en bloc.11 The necessityof the case, within the pre-existing general framework, set the confines within whichjudges could act and, in acting, further confine those whose judgment would follow after theirs. Howdifferent the judicialfunction has become since the Judges’Billcreated a power to choose which matters our highest court would hear! Decision is no longer a necessity, nor new law merely its by￾product. A court with certiorari authority is not merely able, but is expected, to choose its targets with reference to what law seems most important to enunciate. Having thousands of petitions from which to select,say, 100 controversiesfor decision12 enables judges to have agendas. It encourages them to speak more broadly than the particular facts before them require, counsel against that as we may.13 It permits them to defend themselves against the inconvenience of facts that might appear to compel movement opposite to the direction they prefer. And, thus, it inevitably heightens our sense that in appointing judges we are appointing lawmakers and should be concerned with the kinds of law they are likely to make. Freed from the discipline of the unavoidable call of justice, lured by the opportunity, perhaps even felt as