Bad laws make bad judges

National Interest, The, Spring, 2004 by Fred C. Ikle

Robert H. Bork, Coercing Virtue: The Worldwide Rule of Judges (Washington, DC: AEI Press, 2003), 161 pp., $25.

JUDGES, according to Robert Bork, are increasingly usurping authority that belongs to the people and their elected representatives. This usurpation, Bork fears, is robbing Americans and the citizens of other democratic countries of the power to govern themselves. Certainly, the proper functioning of the rule of law is of immense importance in any democracy. How the law is developed and applied defines our individual liberties, protects or limits our political freedom, influences the moral tenor of our society, and shapes the character of our nation.

Robert Bork is right. In democracies--even the best and well-established ones--the functioning of the law is deteriorating. But the rule of law is a process with several tiers and many moving parts. Different bodies either institute the fundamental legal framework, or spell out specific laws, or write the subordinated rules, or apply this ever-growing artifact to specific cases. That those who apply the law from case to case ought to have considerable independence from those who create and enact laws has been part of democratic thought, thanks to Locke and Montesquieu, long before our body politic accepted the principle of universal suffrage.

However, the gravamen of Coercing Virtue is targeted on the occupants of the third branch of government, in particular Supreme Court judges who wear the label "liberal" on their sleeves. By imposing the agenda of the liberal Left, Judge Bork writes, "activist, ambitious and imperialistic judiciaries" have taken sides in an ongoing "culture war", diluting "the power of the people of Western nations to govern themselves." Other scholars and politicians have voiced similar complaints, but Bork commands our renewed attention with his supreme mastery of jurisprudential reasoning, his deep-felt moral concerns, and his compelling style. Although Bork hints that the executive and the legislative branch ought to be kept in mind as possible co-conspirators, he focuses mainly on the judiciary. Implicitly, he thus exempts the other two branches of government from his indictment.

This narrow focus, in my view, does not give enough attention to the many interactions between the judiciary and the other parts of the Western rule of law. More importantly, it overlooks a variety of remedies that could mitigate the deterioration of the rule of law. For a prosecutor who must wrestle with a complex conspiracy, it might make good sense to start his case by singling out just one of the accused, preferably the least powerful one. This approach wakes up the jury with a dramatic initial salvo. But unless followed up with the rest of the case, it can be dangerous. Children in summer camp sometimes play the game of holding a magnifying glass to the sunlight so that the focused heat will burn a carbonized dot into a white page--and if they keep this game going they will set their tents afire.

Given the many strengths of Coercing Virtue, one is tempted to urge Judge Bork to write a follow-on book that will present the remainder of his important case on the deterioration of the rule of law, at home and abroad. Here is a short sketch by a jurisprudential layman of some items that the whole case might include.

Changes in the law, we are all agreed, are necessary from time to time to take account of changing circumstances. A strong subtext of Coercing Virtue asserts that it is up to the legislature--the truly elected branch--to make such changes.

This point is indisputable, with some important qualifications. First, our judges are not hereditary monarchs. They are either appointed by elected officials and confirmed by a majority of an elected legislative body, or they are elected directly by the people. While they do not have to be re-elected like legislators, they can either be recalled or impeached. To be sure, it is difficult to get rid of "bad" judges, and for a valid reason: to give the Third Branch its independence. (Bork cites the infamous, but happily averted, attempt of Franklin Roosevelt to pack the Supreme Court.) At the same time, it is often just as difficult to get rid of "bad" legislators, largely because of the overwhelming advantage of incumbency.

Second, legislators rarely get rid of bad laws, even laws that have long become obsolete or that include egregious drafting errors. Bork gives a telling example of a badly obsolete law, more than 200 years old, that Congress never found the time--or the courage?--to rescind: the Alien Tort Claims Act of 1789. Briefly put, this law allows foreigners to sue in U.S. courts for tort committed in a foreign country in violation of the "law of nations." Instead of passing a one-sentence law to repeal this inappropriate old Act, Congress compounded the problem. It adopted legislation in 1996 (with the strong support of the Republican-controlled House!) that enables American victims of terrorist attacks abroad to sue the foreign state that allegedly sponsored the terrorist act. Sympathetic juries have awarded these victims (or their heirs) hundreds of millions of dollars, even though in some cases the State Department had warned all Americans not to venture to the places where these victims were attacked. Meanwhile, the families of our brave soldiers who have been killed defending our country receive a tiny fraction of these jury awards as compensation. To make matters worse, since the accused foreign state (for example Iran) would not pay, Congress allocated taxpayer money to pay these millions; one third of which, no doubt, goes to the trial lawyers. Recently, the trial lawyers tried to get paid from Saddam Hussein's cache of dollar bills captured by the military in Iraq--money they intended to use for Iraq's reconstruction, so as to reduce the need for reconstruction grants from the American taxpayer. Did Congress blow the whistle and abrogate their mistake of 1996? No, it was judges who stopped the robbery.