I was again reminded last week as I read about the political mess in New Jersey of something my old law school teacher, Grant Gilmore, said in a series of lectures he gave at Yale. To paraphrase him, Prof. Gilmore remarked that “in heaven the lion would lie down with the lamb and there would be no laws, and in hell due process would be strictly observed.” I don’t want to suggest that New Jersey is a particularly hellish place, but I do think that what is happening now in New Jersey in the senatorial election is a most frightening phenomenon and one that bodes ill for the future of American democracy.

It seems as though we are entering into a period of election by litigation. The battle over the presidential election of 2000 will be debated for years to come, and varying interpretations of what happened have been and will continue to be put forward. What no one can dispute, however, is that the process by which the election was ultimately determined, recourse to litigation and ultimately an opinion by the Supreme Court of the United States which had the practical effect of deciding the election, was unprecedented and remarkable.

In that election nine justices, none democratically elected, all over 50, and all of whom lead necessarily somewhat cloistered lives, decided who would occupy the White House. As it has turned out, that decision was even more significant than could have ever been dreamed, because of the events of 9-11 and the ensuing war on terrorism in which our country is now involved.

This week in New Jersey, we have seen the second stage in the transformation of American law and politics which began in 2000. The two major parties were back in court, this time disputing whether former Sen. Frank Lautenberg might take the place of the disgraced Democratic incumbent, Robert Torricelli. At issue here was far more than one senatorial race.

In the minds of many commentators and analysts, given the exceptionally close races around the country this year and the one vote majority which the Democrats hold in the U.S. Senate, the fate of the senatorial race in New Jersey may well determine which party has a majority in the Senate. But there was something else at stake here, I would suggest. What also was at stake, quite simply, is how we elect our government and how we perceive our judiciary.

Every child learns in grade school that the United States’ form of government is predicated on the concept of separation of powers among the three branches of government, the executive branch, the legislative branch, and the judiciary. While some overlap is inevitable, the various branches have historically attempted to maintain some distance among them. This inclination to preserve the separation among the branches seems to be decreasing in the federal judiciary. More than one observer of the courts has remarked recently upon a new “imperial” mind set among some federal judges, particularly on the Supreme Court of the United States. It is this new attitude which both parties have appealed to in bringing election-deciding cases before the federal courts.

Why does this seem troubling to me? Is it simply that I cling to outmoded theories of government? Perhaps, but perhaps I also believe that the essence of American democracy is that our elections should, whenever possible, reflect the will of the people (even when technically made through the electoral college).

I believe that using the judiciary to decide issues which, in effect, decide elections, whether or not such use is sanctioned by some interpretations of the law, directly cuts against this principle. Indeed, it seems to me that the New Jersey case was a clear example of this problem. If the case had been decided against the Democrats, then the people of New Jersey would have had no real choice in who is elected as senator.

I just don’t think that such a result, which, happily, will not now happen, would have been good for the state, the nation, or even the political parties involved. Had the plaintiffs in this case won, they perhaps would have won a crucial election (which they are likely to win anyway), but they would have established a frightening legal precedent.

In my opinion, it is a good thing that the U.S. Supreme Court decided to let the New Jersey Supreme Court decision stand in this case and not intervene. Nonetheless, one must ask whether even going to the state Supreme Court to have it involved was the most prudent course to follow. In the end, I suppose the real issue here is whether our political parties should do everything legal and possible to win elections, regardless of the consequences for the future. The alternative is for both parties to revisit their current inclination to litigate elections and to decide whether in going to court as they have been doing, even if they have the right to do so, they have followed the best policy.

Sometimes restraint makes more sense, even if you lose in the short term. The future of the American democratic process and its independence from court domination is, to my mind, more important than the outcome of any single election, even one as important as this year’s in New Jersey.