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THE MOST PRESUMPTUOUS BRANCH

The Costs of an Imperious Judiciary

12:00 AM, Jun 8, 1998 • By JOHN J. DILULIO JR.
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Last year, Philadelphia had over four hundred homicides, 82 percent by guns -- the highest percentage of any big city in the country. And yet, only 7 percent of weapons arrests made by Philly police in recent years have resulted in significant jail sentences for guntoting, repeat criminals. The city may have a tough-on-crime mayor, a strong district attorney's office, a reinvigorated police department, and a growing number of community-based prevention programs. But they have proved at last no match for Philadelphia's criminal-court judges who fail -- whether through incompetence, inability to understand the damage done to their city, or entrenched bias -- to enforce the law. When a judge lets an armed repeat offender go because (as he explained to a local reporter) it was "only a gun case," something is deeply out of order.

Of course, even if the city's judges improved, federal judges could still make it impossible to crack down on weapons. When a micro-managing federal judge imposed an arbitrary jail cap on Philadelphia, the order resulted during an eighteen-month period in the release of 9,732 defendants who used their court-ordered freedom to commit hundreds of violent crimes -- including 79 murders and 264 gun-law violations. One of the shooting victims was a rookie patrol officer and son of a highly decorated veteran police detective.

Someone who understands the extent to which America's courts are responsible for conditions like those in Philadelphia is Max Boot, and editorial-page editor at the Wall Street Journal. His provocative and beautifully written new book, Out of Order: Arrogance, Corruption, and Incompetence on the Bench, sets out to explain how -- in a profound derangement of our constitutional order -- the emergence of a "juristocracy" and "government by consent decree" has permitted judges at all levels to menace the public good and raid the public purse.

In the seventy-eighth of the Federalist Papers, Alexander Hamilton argued that the judiciary was the national government's "least dangerous branch" -- the branch least likely ever to become the locus of concentrated power exercised contrary to the interests of the people. Dismissing anti-federalist warnings, Hamilton virtually laughed off the fear (articulated most powerfully by the anti-federalist who wrote under the pseudonym Brutus) that in years to come, ever more imperious judges -- breaking free of constitutional checks and balances, yet remaining insulated on the bench from both popular pressures and the adverse consequences of their own decrees -- would act with impunity against the public interest and common good.

Today, most judges, including those on the federal bench, are mindful of the proper limits of their constitutional authority. Most judges, most of the time, are generally respectful of the lawmaking prerogatives of the people's duly elected representatives. Some judges are arrogant, corrupt, incompetent, or worse, but most are not. So much of the daily work of the courts is now a bureaucratized processing of cases that the judiciary's main problems are mundanely administrative, not monumentally constitutional. And, as such law professors as Robert Katzmann have argued persuasively, there may yet be ways of improving judicial decision-making and the working relationships between legislators and judges.

Still, after reading Max Boot, it is impossible to conclude that Brutus was wrong. In his foreword to Out of Order, former judge Robert H. Bork minces even fewer words than usual about our imperious judiciary. "Our courts are behaving badly," he declares flatly. Absolutely "nothing in the Constitution" supports several recent Supreme Court decisions. Instead, these decisions are simply "illegitimate exercises of power" which demonstrate that the "Supreme Court is an active partisan on one side of our culture wars." And the Supreme Court is not alone. Jurists generally "are drawn from and respond to the intellectual class" and believe "their own views are superior, more civilized and just, than those of the public" or elected officials. Today's "intellectual class" is not the business class or the made-it-to-college working class but the chattering class of irreligious university-bred elites who imbibe "radical individualism" with a chaser of "radical egalitarianism." The federalists who did not see these judges coming, and the Founding Fathers who banked on "judicial modesty," were wrong: Boot's book, rules Bork, is a true indictment of contemporary "judicial arrogance."