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Vanderbilt Law Review

First Page

277

Abstract

It is a special privilege for me to return to this great law school to honor one of its greatest graduates. Each time I return to Nashville, it feels like a homecoming. Each time I return, I also feel that as I am getting older, Judge Merritt is getting younger. The last time I was here, he got married; and the time before that, we squared off for the umpteenth time on a tennis court. He also Writes more opinions, gives more speeches, and has taken more of a leadership role in protecting the interests of the federal judiciary than just about any other judge. Meanwhile, a good source-Judge Richard Arnold-informs me that Judge Merritt has taken up golf. So, I hope you will appreciate my confessing that I do not regard Judge Merritt's stepping aside as chief judge as a sign he is slowing down. This is just the start of a new phase of his already distinguished career. For those who know him best, he will always be the chief judge in our hearts and respect. He will always be the consummate teacher, adviser, role model, friend, and doubles partner.

Even for those who know Judge Merritt best, however, it might seem a bit odd to honor him with a symposium on defining democracy for the next century. When we think of democracy most of us tend to think only about the political activity in Washington. If we think of the judiciary at all, most of us tend to think only of the Supreme Court.

It is easy to miss that the real test of democracy is not in Washington. The real test is in places like Nashville or Mobile, Alabama, where I grew up. When I was growing up, school prayer was flourishing, even though the Supreme Court had much earlier struck down public school prayer.' Nor did it matter that the Supreme Court had struck down state-mandated segregated schools in 1954. The public schools were still largely segregated when I graduated in 1974. If you want to know how democracy works, you have to look outside of Washington.

Tennessee is an especially good place to look. Here the nation's movement away from republicanism and toward democracy began. Judge Merritt knows that history well. Through his classical legal training under the watchful eye of Dean John Wade, and through his experiences as a first-rate lawyer, prosecutor, educator, and judge, he has developed a keen appreciation of what makes our constitutional democracy exceptional. His vision of democracy has not been a political scientist's ideal, but rather the legal ideal specified by the Constitution. He has always appreciated that judicial power has limits and that our constitutional democracy is lost if its citizens, who are the ultimate sovereigns, are unwilling or unable to rise to the challenge of governing themselves. He has appreciated, like Justice Robert Jackson before him, that "[clivil liberties had their origin and must find their ultimate guaranty in the faith of the people. If that faith should be lost, [no one] in Washington could... supply its want."3 Judge Merritt has understood that federal judges cannot make all of the hard decisions for the citizenry; they can ask the people to rule but they cannot make them rule. Federal judges can expose injustice, but they cannot make people just. Federal judges can lead by example or instruction, but they cannot make an unwilling or cynical citizenry follow. Federal judges cannot energize democracy single-handedly, but they can, by judiciously deferring to it, avoid unnecessarily sapping its energy.

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