Have the Judges Done Too Much?

By Evan Thomas

In a pitilessly consistent democracy, judges would not be making law at all," said Judge Learned Hand. Why, then, he wondered, do people not resent it when they do? That was 35 years ago, when judges were for the most part more restrained about making new law than they are now. Today many Americans do resent an ever-more-activist judiciary. Beware, warns a vocal group of scholars: the Imperial Presidency may have faded, but now an Imperial Judiciary has the Republic in its clutches. The fear, as Constitutional Scholar Alexander Bickel once expressed it, is that too many federal judges view themselves as holding "roving commissions as problem solvers, charged with a duty to act when majoritarian institutions do not." Given license by a vague Constitution and malleable laws, and armed with their own rigorous sense of right and wrong, judges have been roving all over the lot: into school desegregation, voting rights, sex, mental health, the environment--the list goes on and on.

Judges do not just judge any more; they legislate, make policy, even administer. Indeed, says U.S. Court of Appeals Judge Irving Kaufman, "sometimes it seems that business, psychology and sociology degrees, in addition to a law degree, should be prerequisites for the federal bench." When Boston's duly elected school committee refused to bus schoolchildren, the local federal judge did it himself, right down to approving the bus routes. A federal judge in Alabama ruled that inadequate mental-health care is unconstitutional. So what is adequate? His answer was a list of 84 minimal standards, reaching down to a supply of hot water at 110DEG F. Result: while Alabama in 1971 spent $14 million on its mental institutions, in 1973, after the court order, it spent $58 million.

"Courts are not a budgeting agency," says Harvard Law School Professor Emeritus Paul Freund. "They see problems through a keyhole. What they ordain in the way of expenditures is not correlated with expenditures for other needs." To clean up state prisons, judges in Alabama, Rhode Island, Oklahoma and Louisiana have decreed elaborate instructions on food handling, hospital operations, recreation facilities, sanitation, laundry, painting and plumbing, including the number of inmates per toilet. In Virginia, a federal judge overruled a school-board ban on the publication of a high school poll on birth control; in New Mexico, a judge ruled that Mexican American children must have bilingual education. To save a three-inch fish, the snail darter, the U.S. Supreme Court stopped a $116 million hydroelectric project in Tennessee.

With the 49% growth in the number of civil lawsuits since 1970, courts have seemingly become a forum for redress of all things unfair in life. Old judicial barriers that kept people out of court unless they had been personally harmed have been so loosened that not long ago the Supreme Court allowed five George Washington University law students to oppose a railroad-rate surcharge. Why? Because, the students argued, the surcharge would increase the cost of recyclable goods and thus mean more beer cans littering public parks. (They lost.) Conservatives like Yale Law Professor Robert Bork, who was U.S. Solicitor General during the Nixon Administration, understandably worry that "democratic government gets pushed back and back, as judicial government takes over."

For all their power, judges remain remarkably unaccountable and unknown. Most state judges are elected, but by voters who usually have no idea whom they are voting for. Federal judges are appointed for life; they can be removed only by a two-thirds vote of the Senate, and so far only four have been so punished (the last in 1936). One despotic old coot, Judge Willis Ritter of Utah, was allowed to stay on the bench, despite his erratic behavior and abusive temper (he even threatened workmen with contempt for making too much noise near the courtroom), until he died at 79 last year.

Faceless men in black robes, judges speak a tongue that laymen find baffling. They are beholden only to higher judges, which means the Supreme Court is beholden to no one at all. Said blunt-spoken New Yorker Robert Jackson, a Supreme Court Justice in the Roosevelt and Truman years: "We are not final because we are infallible, but we are infallible because we are final."

Heralded into court by the bailiffs command, "Hear ye! Hear ye!" (Oyez! Oyez! in the Supreme Court, which prefers Old French), judges understandably take an exalted view of themselves. An Indiana judge, sued for authorizing in 1971 the sterilization of a 15-year-old girl without her knowledge, proclaimed in his plea for judicial immunity: "An aura of deism is essential for the maintenance of respect for the judicial institution." The judge's claim of something like divine right worked: last March, the Supreme Court ruled, 5 to 3, that a judge could act maliciously, exceed his authority and even commit "grave procedural errors" and still be immune to personal-damage suits. Judges must be free to follow their own convictions, said the court, though Justice Potter Stewart dissented: "A judge is not free, like a loose cannon, to inflict indiscriminate damage."

Letting judges roll around like untethered cannons seems indefensible at a time when the public clamor is all for accountability in government. Yet, before judges are judged too harshly, it is necessary to understand how they fit into the political process and became so powerful.

While the Constitution was going through the ratification process in 1788, Alexander Hamilton confidently predicted that the judiciary would be "the least dangerous" branch of the new Government, since judges would not have the power of the purse or of the sword. Indeed, the first Chief Justice of the United States, John Jay, who resigned to be Governor of New York, refused President John Adams' invitation to return, saying that the court lacked "weight and dignity." It was the fourth Chief Justice, John Marshall, who gave the federal bench real clout. Marshall, who believed that a judge should be responsible not to Congress or the President but only to "God and his own conscience," declared in Marbury vs. Madison (1803) that the judiciary had the right, indeed the duty, to strike down acts of Congress that conflicted with the Constitution. This right of judicial review had support from Federalists like the complacent Hamilton, but it is far from explicit in the Constitution.

The Supreme Court did not use the power Marbury gave it for 54 years. When it did, with the Dred Scott decision of 1857, which struck down the Missouri Compromise and declared slaves to be property with no rights as citizens, it helped start the Civil War. During Reconstruction, the Constitution was amended to ensure that blacks were treated equally: no state, said the majestically vague 14th Amendment, shall deprive persons of "equal protection" or "due process" under the law.

Judges eventually found in the 14th their greatest tool of judicial review, but not for the reasons intended by the amendment's drafters. At the beginning of the 20th century, the 14th was used principally to protect property, not the disadvantaged. The court protected business from government regulation, thwarted unionization and struck down minimum-wage and maximum-hour laws. That trend began to fade only in the late 1930s, after F.D.R. threatened to "pack" the court with liberals to get his New Deal through.

By the '50s and the coming of the Warren Court, the roles were reversed. It was legislatures that were resisting reform, and the court that was pushing social change. The landmark of that era was Brown vs. Board of Education (1954), which established that separate was not equal in public schools. The 14th acquired new meaning; judges became guardians of the poor and forgotten. The criminally accused were guaranteed the right to free counsel when indigent, the right to a jury in a felony case, and, with Miranda (1966), the right to be told of their rights before confessing. Free-speech guarantees were widely extended; in the 1960s, electoral districts were reapportioned to ensure one-man, one-vote.

The Burger Court of the 1970s has proved less liberal, but it is hardly a model of judicial restraint. Rather, it is what scholars call "selectively activist," which some say means that its activism depends on whether or not it likes the result. One of its most activist decisions remains Roe vs. Wade (1973), which found in the Constitution an implicit right for women to have abortions. Although equal protection has of late been invoked less in the cause of the poor and the black, it has been extended to just about everyone else, including aliens, bastards and even 18-to-21-year-old males who were barred from drinking 3.2 beer in Oklahoma while women were not. And in areas the high bench has refused to enter, state courts are now active; for example, courts in New York, California, Ohio, Connecticut and New Jersey have mandated equal financing for school districts. Whatever restraint the courts have shown, says Harvard's Freund, are "eddies in the mainstream."

While listening to his brethren's legalistic arguments at Supreme Court conferences during the '60s, the late Chief Justice Earl Warren would impatiently interject, "Yes, yes,'yes. But is it right? Is it good?" His stance remains at once noble and unsettling. Says Stanford Law Professor Gerald Gunther: "Part of the price of their remarkable independence, tenure, reverence, is that judges are under a special obligation to justify their opinions, even if they got there by their guts originally." Judges are supposed to look for the intent of lawmakers, heed precedent, and hesitate to read their own moral views into the law.

Most important, the judges are bound to uphold the Constitution. But that is not an immutable piece of parchment that judges can apply to laws like litmus paper. It is rather a set of principles that have proved enduring partly because they are flexible. When the original Constitution was written in Hamilton's day, the U.S. was mostly a nation of small farmers who would have fallen on their pitchforks at the thought of today's complicated modern society, or of the broad role that Government plays in running it. By giving the Constitution new meaning, the judiciary has allowed it to keep pace with change, to meet what Justice Oliver Wendell Holmes called the "felt necessities of the time."

Moreover, as Kaufman argues, "it is not enough for justice to be declared. The judge must assure that justice is done." That is why judges get involved in decreeing drastic remedies, as in many school-busing decisions. Usually, a court does not start off by telling the state what to do; it just says what the state cannot do: it cannot stuff ten men into a cell built for two; it cannot provide one toilet per 200 inmates; it cannot ware house mental patients like old furniture. Sometimes that is enough. One Massachusetts judge, hearing a suit protesting pris on conditions, took state authorities on a tour of the prison and asked: "You're sure you really want to defend this case?" The state did not, and (wisely) accepted a consent decree to fix the place up. More often, the state does nothing, and the judge will call in the parties to work out a solution.

Thus judicial activism is in large part the product of legislative inaction. Says Yale's Bork: "Rather than making the tough choices, legislatures will frequently write a vague law, and pass [the hard decisions] off on the courts." A phenomenally litigious society also fuels judicial power; judges, after all, cannot make law without lawsuits. Tocqueville observed more than a century ago that there is "hardly a political question in the United States which does not sooner or later turn into a judicial one." With the growth of Government, the power of the judiciary has naturally expanded. Thus public-interest groups that cannot sway legislatures will not hesitate to run off to the courts to get their "rights" upheld. Judges are often more likely to extend a sympathetic ear, less likely to get hamstrung by opposing interests.

Finally, democratic institutions simply are not as democratic as they look in civics textbooks. Bureaucrats, who actually run so much of government, may be as insulated from popular accountability as judges, and legislatures are notoriously swayed by special-interest groups. By offering redress to people with no special political clout, says Harvard Law School Professor Laurence Tribe, judges give otherwise disenfranchised groups a voice in the way public funds are spent and Government affects their lives. Activist Tribe complains that what really irks critics of an interventionist judiciary is not activism per se but the (often) liberal results. Says he: "The myth of the Imperial Judiciary is nothing but a mask for injustice." Or, as Civil Rights Lawyer Joseph Rauh puts it: "The Imperial Judiciary is simply the conservative doctrine of inaction dressed up in $5 words."

Still, the feeling persists: the judges have gone too far. Sociologist Nathan Glazer says that the progression of judicially enforced rights has given the country "indigestion," like a boa constrictor that has swallowed a goat. Though judges rate high in public opinion surveys -- a poll commissioned by the American Bar Association last year found that 77% believed that judges are "generally honest and fair"-- politicians and public alike have begun agitating to make them more accountable for both their judgments and their conduct. But accountability should not come at the cost of compromising judicial independence.

The U.S. at once prizes majority rule and individual freedom; an independent judiciary remains the best insurance that the former does not steamroll the latter. In the end, that means relying on judges themselves to exercise self-restraint. Few would ask the judges to undo all the rights they have advanced in the past 25 years. Yet, having done so much to change society, the judiciary might now pay more heed to the dictum of Justice Louis Brandeis. "The most important thing we do," he said "is not doing."

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