Judges in the Dock
Williams, Stephen F., Reason
By Stephen F. Williams
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. …