Based on the old saw that daylight is the best disinfectant, Boot argues that cameras in the courtroom would chasten the worst judges. But there is also the risk that the extra exposure will bring out the worst in the pretentious and arrogant people who seem to make up a hefty portion of the bench. Some of Boot's proposals are even more naive. He suggests that Congress might, without a constitutional amendment, require a two-thirds majority of the Supreme Court for any decision to invalidate a statute. His theory: Congress controls the number of Supreme Court justices and could make the number three; if it were to make the number three, then a two-thirds majority would be necessary as a matter of arithmetic; ergo, Congress can specify a two-thirds majority regardless of the number of justices it ordains. Without trying to evaluate the constitutionality of such a statute, I think one can safely call this reasoning flaky.
Boot makes one point, however, the mere assertion of which is surely valuable: He trashes the notion, carefully fostered by the American Bar Association, that judges should be above political denunciation. This stance is especially hypocritical for the ABA, which wholeheartedly favors a swashbuckling brand of constitutional interpretation under which judges would enshrine the left's currently favored doctrines. I'm not sure how many observers of the bench are holding back on account of the ABA's precept. But if there are some, and they read Out of Order, they will surely now cut loose a barrage of pent-up criticism.
Implicit in the book is a more fundamental approach: the thought, which will be congenial to REASON readers, that the courts have wrested far too much power away from systems of private ordering, most obviously markets. But a libertarian looking to the book for a careful exploration of this idea will be disappointed. Theory, whether of political economy or of the narrower field of defining the judicial role, is not Boot's strong suit. At least not in this book.
So read it and weep. Or laugh, depending on your disposition. Out of Order will give you a visceral sense of the judicial establishment's dregs, without which you cannot realistically appraise the whole.
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