Foreword: the question of process.

• Author: Wilkinson, J. Harvie, III

Many in the legal profession have abandoned the great questions of legal process. This is too bad. How a decision is reached can be as important as what the decision is. In an increasingly diverse country with many competing visions of the good, it is critical for law to aspire to agreement on process -- a task both more achievable than agreement on substance and more suited to our profession than waving the banners of ideological truth.

By process, I mean the institutional routes by which we in America reach our most crucial decisions. In other words, process is our collective answer to the time-honored question, "Who decides?" Its vintage notwithstanding, many now doubt the salience of this query. We grow more passionate and argumentative over the achievement of substantive ends. And it is to those ends that process has become subservient. Process today lacks a disinterested life of its own. The important thing, it seems, is to advance on all fronts and prevail at all costs. The measure of process has become whether it can take us where we want to go -- not whether it is the best route regardless of the destination.

A vision of society where substantive outcomes alone are paramount thus threatens to engulf us. Some would say that it already has. Only by recommitting ourselves to process can we ensure the legitimacy of the outcomes themselves.

I.

The neglect of process has produced confusion on a broad scale. We no longer know who is to perform what role. Worse still, we are no longer persuaded that it matters. The blurring of roles between legislative and judicial, between federal and state, and between public and private is endemic. Naturally, there will always be functional overlap and institutional cooperation. But we ask too infrequently the question of which forum is best suited for the resolution of which disputes. We certainly do not pose that question a priori, before outcomes are known and minds become set.

Every problem in America poses the initial question of which decisionmaker(s) should address it. We have an abundance of potential decisionmaking institutions in our country: Congress, the federal courts, the administrative process, the states, the localities, and the private sector. Each of the decisionmakers carries a different balance sheet. The federal judiciary is independent, but also elitist and unaccountable. The Congress is adept at democratic compromise, but beholden to special interests. The bureaucracy is expert, but unfathomable. The problem solving of the states may be creative, but piecemeal. Localities may be participatory democracies, but majoritarian tyrannies. A market may be the agent of general well-being, but also of individual distress.

It is no easy task to agree on the characteristics of decisionmaking institutions, much less which institutions should be trusted with society's most difficult problems. But by refusing to ask the institutional questions a priori, we deny ourselves a sense of detachment. It is not enough to believe, for example, that crime or discrimination is our foremost social problem and then latch on to whatever anti-crime or anti-discrimination proposal lies most conveniently at hand. Crime and discrimination are both subject to an infinite variety of solutions that range from the most national to the most local and from the most public to the most private. If our substantive preferences and process predilections invariably coincide, then we deny the workings of constitutional democracy our most basic respect.

It may seem odd for a judge to lament the demise of process. We are, as the saying goes, part of the problem. Although many decry judicial activism, it is frequently practiced by both "liberal" and "conservative" judges. When the Court decided Brown v. Board of Education, it raised hopes that it could serve as a beacon of enlightened decisionmaking, especially on difficult issues such as race. Confidence in the judicial branch produced a boom in public interest litigation -- suits brought expressly for the purposes of advancing overtly social goals. First developed as a tool by more liberal groups such as the NAACP and the ACLU, the public interest lawsuit is now also used to great effect by more conservative groups. Frustrated with the gridlock of Congress, savvy activists will often skip the political process altogether and bring their grievances directly to the third branch. When lawsuits become the vehicle of preference for important changes of policy, power shifts from the people to the judges.

For this development, the judiciary shares much of the blame. And the advocacy class has taken its signal from the courts. For example, the question of our commitment to process often comes home to me when considering amicus briefs. Amicus briefs can be quite helpful, and I confess to reading them. Organizations with a demonstrated interest or expertise in a given subject ought as a matter of fair procedure to be allowed their say.(1) But underneath many an amicus brief is an unstated assumption -- we have a problem and the court might as well find an answer. But why should the court be the one to decide? Many amicus brief writers focus on the urgency of the problem and explain in alarmist tones the consequences of a "wrong" decision. Intriguing social insights and dazzling empirical demonstrations do little to displace the sense that judges are being addressed as legislators and lobbied for a particular result.

The growth of the amicus industry reveals our new judicial age. In 1965, approximately one-third of all Supreme Court cases decided by opinion involved amicus briefs.(2) Between 1986 and 1991, eighty-four percent of cases had at least one amicus brief, and the average case had over four.(3) Each new controversial case breaks the previous record for number of amicus briefs filed. In the 1978 case, Regents of University of California v. Bakke, there were fifty-seven amicus briefs.(4) When a major challenge to Roe v. Wade arose in the 1989 case, Webster v. Reproductive Health Services, the Court received seventy-eight amicus briefs.(5) In Webster, 420 organizations participated as filers or co-signatories.(6) Some of the amici reiterate more polemically the arguments already made by one of the parties. These briefs are not by "friends of the court," but rather by friends of a cause.

Public interest groups don't just file briefs in cases before the Court -- they also seek to...