“Knowing that religion does not furnish grosser bigots than law, I expect little from old judges.”
—Thomas Jefferson

A society governed by the judiciary—rather than by the will of the majority—displays odd characteristics. On July 29, 1994, a seven-year-old girl in Hamilton Township, New Jersey, was sexually assaulted and murdered. A neighbor who is a twice-convicted sex offender has been charged in her death. In response to this crime, the state enacted legislation requiring that a community be notified when sex offenders are released into it. In 1984, Carlos Diaz pleaded guilty to raping a 20-year-old Garfield, New Jersey, woman in Teterboro. Two days after Mr. Diaz’s release from prison. Federal Judge John W. Bissell exempted him from “Megan’s Law.” The judge found that the law could have a “punitive impact” on Mr. Diaz. Judge Bissell said he was sympathetic with the legislature’s intentions, but added that the Constitution “has stood for centuries as a reservoir for individual rights.” He found, as the New York Times reported, that “the harm Mr. Diaz would face through the notification provisions was greater than the threat the community faced by not invoking them.”

On October 7, 1994, a Federal District Judge in Colorado ruled that an inmate serving a ten-year sentence for kidnapping must be allowed to perform satanic rituals in his cell. Satanism, the judge ruled, was protected under the First Amendment; a prison rule barring devil worship was unconstitutional. We ought to give the devil his due, said the judge.

Midshipman Joseph Steffan was dismissed from the Naval Academy in 1987 after he stated he was a homosexual, a violation of Defense Department regulations. Chief Judge Abner J. Mikva of the District of Columbia Circuit Court of Appeals conceded that the military could prohibit homosexual conduct, but found that it is “inherently unreasonable” to presume that a person is more likely to break a rule simply because of intention or desire. The military’s finding that the presence of homosexuals harms morale and discipline was set aside by the court because it “depends solely upon the prejudice of third parties.” The court’s opinion also rejected the military’s argument that the presence of homosexuals invades the privacy of heterosexual servicemen: “The argument that homosexuals will stare is very similar to the argument that they will engage in homosexual acts. . . . The argument that heterosexuals will fear such staring is, in turn, a version of the argument that government should be allowed to give effect to the irrational fears and stereotypes of third parties.”

Most Americans would regard these decisions as insane. Learned Hand once asked who had made the judiciary “the arbiters of all political authority in the nation with a discretion to act or not as they please?” Hand’s is a good question, to which Robert F. Nagel, a professor at the University of Colorado School of Law, has given us a thoughtful answer. Nagel, in his 1989 book Constitutional Cultures, concludes: The “Constitution has become an ambitious political and social agenda; the courts have become a kind of elevated bureaucracy, busily crafting formulae that will bend the nation’s affairs toward various visions, dignified by constitutional status.”

The “various visions” come from what Paul Hollander calls the “adversarial culture,” an intellectual elite which believes the “prevailing social order is deeply flawed, unjust, corrupt and irrational, calculated to constrain or reduce human satisfactions.” The Court styles itself as the protector of individual rights and self-expression against the will of the oppressive bourgeois majority. Crime, on this understanding, is a form of self-expression, as well as of social protest. The Court routinely overrules the actions of local police, boards of education, and the state laws under which they act. It calls the deleted laws “arbitrary” or “without rational basis”—extravagant language which, as Professor Nagel notes, shows no respect for the acts of popular assemblies. The Court, he writes, has “isolate [d] itself from the general culture, retaining ties of language and intellectual approach only to an academic elite.”

Why are so many members of this intellectual elite convinced that their society is unjust and immoral? Certainly, they are not themselves victims of the injustices to which they arc so sensitive. Indeed, American society has provided them with a comfortable, and often tenured, position. Nagel speculates that the alienation of the judicial elite has a particular history:

The single most significant event for present-day judges and scholars was the federal judiciary’s extended and often heroic assault on racial segregation in the South. The profound formative influence of this struggle has shaped as has nothing else law, role, and aspiration. The operative image has been of the courts attacking a pernicious and deeply ingrained part of popular culture. By degrees, I believe, this image of the judiciary as antagonist to the popular culture has consolidated and grown, so that the courts’ basic function has become that of critic and reformer of the general culture. No more than the arrogant modern painter or composer, whose roles also are to uplift an unappreciative and uncomprehending mass sensibility, need the judiciary employ an idiom that draws on and is understandable to ordinary people.

The courts are the leading participants in the debate over homosexuality, which has locked American society in a “ferocious struggle over defining the morality of sexual behavior, the meaning of psychological health and the function of family life.” While the rhetoric on both sides is often extravagant, the dispute is about real and irreconcilable differences on matters that are crucial to individuals, families, and society. Nagel writes: “A gathering consensus in respectable circles holds not only that courts should resolve the important disputes about public policy on homosexuality, but that they can do so in a way that does not require anyone to answer the underlying moral questions.” The answers to the questions, says Nagel, are “far beyond the competence of any court.”

Nagel focuses on the Court’s use of stilted academic language and the formulaic style of its opinions. For example, in United States v. O’Brien (1968), in which it upheld the conviction of O’Brien for burning his draft card, the Court reformulated the simple language of the First Amendment to read:

This Court has held that when “speech” and “nonspeech” elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Would the people ever have adopted this mishmash as a Constitutional amendment? The Court’s formulae lead to bizarre and unexplainable results: protection for the burning of flags, but not for the burning of draft registration cards; protection for yard signs, obscenity, and nude dancing, but not for Frank Snepps’s book critical of the precipitous American withdrawal from the Saigon Embassy roof, in which the records of many who had assisted the United States were left behind. If those decisions can be reconciled, then, to use Jefferson’s words, “I surrender human reason as a vain and useless faculty, given to bewilder, and not to guide us.” The Court’s program, as Nagel writes, “has done great damage to the public understanding and appreciation of the principle of free speech by making it seem trivial, foreign, and unnecessarily costly.”

Nagel explains how the Court’s use of terrible English reflects and is designed to obscure the collapse of clear analysis. Its language is not intended to convey thought, but to accomplish a political purpose. The Court’s use of complicated formulae is meant to render the “judiciary’s adversarial relationship with the general culture” more acceptable by making its decisions appear technical and objective:

The style is a conscientious effort to maintain intellectual respectability while attempting to formulate and implement complex policies through institutional layers and across time. The “constitution” has become an ambitious political and social agenda; the courts have become a kind of elevated bureaucracy, busily crafting formulae that will bend the nation’s affairs toward various visions dignified by constitutional status.

In Wallace v. Jaffree (1984), the Court overturned an Alabama law calling for a moment of silence in the schools. The Court conceded that it was constitutional for students to have prayerful thoughts in school, since to hold otherwise would violate several freedoms. But, nonetheless, the Court threw the law out because a legislator had expressed an improper motivation in saying that he wanted to return prayer to public schools, and the moment of silence was the first step toward that end. The Court claimed to be standing athwart the bridge to protect the country from the barbarians: “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters.” Similarly, the Court believed it was saving us from totalitarianism when it overturned Texas’s anti-flag burning statute in Texas v. Johnson. This time, it offered a countervision: “The way to preserve the flag’s special role is not to punish those who feel differently. It is to persuade them that they are wrong.” There is, the Court continued, “no better way to counter a flag burner’s message than by saluting the flag that burns.” Does the country need nine Platonic Guardians to save us from totalitarianism? Is it plausible that nine Guardians can save us from totalitarianism? Indeed, is it possible that the nine Guardians are the problem rather than the solution?

In his current book, as in his past writings, Nagel provides the best analysis yet of the Court’s method, and of the relation of its style to its purposes. The Court’s opinions are written in a way that “masks significant considerations.” They “indicate a direction and a sense of urgency without revealing any animating vision or underlying judgment.” The stream of words is “insistent but fundamentally ineffective, baffling.” But the Court’s vision is shared by mainstream scholars like Lawrence Tribe and Ronald Dworkin. As Nagel writes:

The society that Justice Brennan would create is thought by many to be not only morally attractive but legally imperative. In that imagined society, virtually all acts expressing defiance are protected as “speech”; people revel in, hide from, or are inured to the clamor of offensive communications and sexually explicit materials; church and state are separated by a high and (mostly) impregnable wall; gender differentiation has been eliminated; abortion is freely available; sexual freedoms have been extended to minors and to the unmarried; the institution of marriage has withered into legal insignificance; and death itself is a liberty protected by the Constitution. For many judges and legal academics, this world, or something like it, marks the limit of imagination and tolerance. In this there is a dogmatism that the law dignifies and obscures.

The Court has expressed mystical beliefs about its relation to the people. It believes it must have the power it does because of “our sense of ourselves as a people”—a view boldly stated in the 1992 decision Planned Parenthood v. Casey, where, speaking of the American people, the Court said: “Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to speak before all others.” Speaking before all others is a heavy responsibility, and it is hard to see when and where the people imposed that burden on the Court.

Nagel is one of few commentators to note that Robert Bork and his critics are more alike than they are different. Both agree with judicial review as established by John Marshall in Marbury v. Madison. Both believe judicial review is and should be “an essentially intellectual activity superimposed over majoritarian politics.” It is true that a judge like Bork will interfere with the majority less than will William Brennan, but who knows when or where? Senator Biden asked Bork one “admirably blunt” question: “Does the majority have the right to tell a couple that they cannot use birth control?” Bork’s answer was evasive and intellectualized. A similar issue was at stake in the Scopes trial, and drew this comment from Learned Hand: “Somebody must determine the curriculum, who shall it be? The judges [or the State of Tennessee]?” The people. Hand believed, have the right to decide controversial issues themselves. They will make mistakes but, as Jefferson wrote to Lafayette: “The good sense of our people will direct the boat ultimately to its proper point.”

The country’s long acquiescence in the peculiar institution of judicial review is puzzling. Judicial review assumes that the President and Congress, the branches responsible to the people, either cannot understand—or will not respect—the Constitution, and that the Supreme Court does understand it and will respect it. Its philosophical assumptions are so inconsistent with democratic theory that a long tradition of legal thought has resisted it. Jefferson believed judicial review to be a very dangerous assumption of power by the Court, which “would place us under the despotism of an oligarchy.” Jefferson, Madison, Jackson, Lincoln, and both Roosevelts all opposed it.

For many years, judicial self-restraint allowed judicial review, while fundamentally inconsistent with majority rule, to coexist with it. For the past 30 years, however, the Supreme Court has used judicial review unrestrainedly to impose basic social and economic policies upon an unwilling majority. Nagel believes our long acquiescence in the practice is because, in some sense, we want judicial rule: an anxious society will put its trust in the courts although its resort to them only reinforces its weakness. Our dependence on the judiciary is based on “a disturbing sense of distrust in ourselves and a fear of disintegration.” This depressing conclusion perhaps reads too much into public acquiescence to judicial review.

The same judicial arrogance that Mr. Nagel has documented so well may ultimately, however, cause the downfall of judicial rule, since the willingness of the judiciary since 1965 to oppose the wishes of the majority has placed the courts squarely in the role of adversary to the people. The consequent loss of popular respect for the judicial system only heightens the likelihood that the majority will eventually reassert its rightful authority.


[Judicial Power and American Character, by Robert F. Nagel (New York: Oxford University Press) 188 pp., $29.95]