Judges in the Dock

Out of Order: Arrogance, Corruption and Incompetence on the Bench, by Max Boot, New York: Basic Books, 252 pages, $25.00

Most analysis of the judicial function proceeds on a rather highfalutin level, with subtle and imponderable contentions about comparative institutional capacities floating back and forth. The contestants act in the belief that if we manage to understand these capacities, we'll be able to define a role for the courts, especially in their potentially dangerous task of reviewing legislation for constitutionality.

Max Boot's Out of Order does not engage much in this interminable debate. Instead Boot, editorial features editor at The Wall Street Journal, gets down and dirty, asking what real live judges actually do. The answer is grim: There are lots of fools and knaves out there, wielding the power of the state in stupid, destructive, abusive, and malicious ways. Boot tracks these jurisprudential monsters through virtually every branch of the law.

In doing so, he helps right the balance between lawyers and judges in the court of public opinion. Public esteem for lawyers is dismally low, apparently reflecting a judgment that all the plagues of the court system should be laid at their door. But it is the judges who make the rules and run the system, and Boot rightly argues that much of the responsibility is theirs.

The anecdotes of incompetence and villainy in Out of Order go on and on; indeed, that is the fun of the book. We have the judge who refuses to remove a vehemently prejudiced juror; the one who forces a prison system to provide inmates with "hot pots" in their cells; the one who, supposedly to remedy racial discrimination, orders a state to invest millions in a magnet school that must include a 2,000-square-foot planetarium; the one who gives probation to a juvenile who participated in a bloody murder by supplying the gun and helping dispose of the body. This is quite a rogues' gallery.

But the reader is bound to ask, What's new? Is there any reason to think that judicial competence has declined in recent years? Surely there have been fools and knaves on the bench for a long time. There is the very old story, presumably apocryphal but nonetheless suggestive, of the English trial judge so prone to error that an appellate opinion reversing him began, "The decision below is by Judge X, but there are additional grounds for reversal." Boot himself quotes the familiar riddle, "What do you call a lawyer with an IQ of 80?" The answer: "Your honor."

Although judicial folly and knavery are not easy to quantify, there are structural reasons to suspect that both are on the rise. During the last 40 years, the proportion of lawyers in the population has doubled, and the number of judges has followed suit. For example, there was one federal judge for every 560,000 people in 1960 and one for every 300,000 in 1993. Unless the share of the populace with the attributes necessary for good judging has risen equally, or the relative attractions of the field have increased, the system must be relying on an increasing proportion of ill-suited people.

It seems unlikely that the percentage of people who combine integrity, fairness, learning, and reasoning ability has been skyrocketing. Furthermore, caseload increases have made the job less rather than more attractive; no longer can a federal judgeship be thought of as simply an honorable retirement. Pay generally does no more than keep pace with inflation, and rather erratically at that. Meanwhile, the increased demand for reasoning skills throughout the economy has raised the opportunity cost of being a judge.

In one respect judging may have become a more appealing task, but it is not one that is likely to increase the quality of judges. As the Supreme Court has constitutionalized additional areas of law, and as it, together with lower courts, Congress, and state legislatures, have created new fields for judicial monitoring of the workplace and other realms that used to get along without intense judicial supervision, the chance for judges to throw their weight around has increased dramatically. This may enhance the appeal of judgeships, but probably not for persons with generous helpings of integrity, fairness, learning, and reasoning ability.

Is there a message in this for the law professors who conduct the lofty debate on the proper judicial role in constitutional interpretation? The professors, of course, hold few illusions about Supreme Court justices: They know in their bones that the justices are not as smart as they, and in many cases they are doubtless right. But the professors believe that if the principles governing constitutional law could be understood properly (i.e., if their views were accepted), even the current justices could manage the system tolerably well.

Let's assume the professors' optimism is justified. At some point they ought to confront the legal world below the Supreme Court. As the proportion of human activities subject to judicial management grows, there will be more need for judicial troops out there on the front lines, making factual findings that can be reversed only if "clearly erroneous" and making legal decisions that are never even reviewed because the loser's potential gain is not worth the cost of an appeal. The quality of many of those front-line troops will fall
far below that of Supreme Court justices. Though the Court may be able to correct most of the more extreme misinterpretations of its work, many will slip through. As one federal appellate judge famous for the frequency of his reversals by the Court is reported to have said, "They can't catch me every time." Boot performs a useful service in highlighting this problem.

The book is slightly schizophrenic in that it wanders between examples of incompetence and corruption, almost always involving the lower courts, and examples of arrogance, a more pervasive and ultimately perhaps more dangerous failing. In the lower courts arrogance takes various forms, from demanding preposterous kowtowing by counsel to giving the Supreme Court's constitutional interpretations extravagant readings that plunge the judge into management of problems that belong in the hands of the politically responsible (as with the prison hot pots and school planetarium). At the Supreme Court level the problem of arrogance involves milder versions of the same readiness to supplant political solutions based on wispy constitutional theories.

It cannot be said that Boot offers any rigorous new approach that would intelligibly cabin judicial discretion. And his tendency to drift back and forth between the Supreme Court's actual rulings and lower courts' extravagant or nonsensical applications weakens his case. While the Court should bear in mind the risk of misapplications, it is unfair to treat them as if they were part of the doctrine.

There is one respect in which Boot's focus on the judiciary may let the bar off too easily (though he includes much of the raw material for an indictment of attorneys). In states with elective judiciaries, heavily beholden to lawyers for campaign funds, courts have struck down attempts at tort reform based on highly imaginative state constitutional doctrines. Here it may be appropriate to see the judges mainly as the lawyers' agents, protecting their opportunities to use the legal system for lucrative wealth transfers. While the courts may fairly be criticized for assuming this role, that shouldn't let the lawyers off the hook.

Many of the solutions that Boot offers fit into the "we should all do better" category. We should pick better judges; the politicians involved in judicial selection should act more responsibly, at least looking at the track record of sitting judges being considered for appointment to higher courts. Of course we should and they should. But the forces that make politicians neglect these issues–such as the absence of any large political payoff from insisting on high quality, and the fact that the pickers themselves may not be jurisprudential giants–are hard to overcome with exhortation. Moreover, to the extent that the problem is an arrogant displacement of either private ordering or legislative choice, it is unclear that greater scrutiny by the selectors will help. If they share the assumptions that underlie what Boot calls the "juristocracy," more attention to selection may just yield more-skilled juristocrats.

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.

Stephen F. Williams ([e-mail]) is a judge on the U.S. Court of Appeals for the District of Columbia Circuit.