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."
Following several hard-hitting chapters on criminal law, Boot chronicles the follies of judges who have taken over schools, awarded outrageous liability awards, coerced cities into building low-income public housing, established special rights for homosexuals, trifled with states' rights, summarily vacated the results of voter initiatives, or engaged in outright corruption. Several passages of the book are stand-alone gems. In the chapter "Screening Rooms and Swimming Pools," the author documents how a federal judge's "fit of gavelitis" helped wreck Kansas City schools at a court-imposed cost of nearly $ 2 billion over more than a decade.
Boot's discussion of the ways in which judges have stacked the legal deck in favor of on-demand, any-trimester abortions is good, though too brief. For the next edition of Out of Order, he should address the deadly judicial politics of partial-birth abortion, the never-medically-necessary procedure in which a living human child has its brains sucked out by a licensed physician. The procedure is strongly opposed by solid majorities of citizens of every race, region, and religion. But when, for example, New Jersey's legislature overrode Republican governor Christie Todd Whitman's veto and outlawed partial-birth abortions, a federal judge immediately issued a restraining order barring the state from implementing its ban of the murderous procedure.
Wisely, Boot avoids the notion, popular among many conservatives during the 1980s, that Republican political victories would lead inexorably to a federal bench with greater judicial restraint. Republican presidents, governors, and legislatures did make a difference, but they hardly reversed the tide of juristocracy: As early as 1990, Republican-appointed judges were almost as prone as their Democratic-appointed counterparts to intervene as activists in prison-reform cases.
In his concluding chapter, Boot outlines proposals for "dethroning the juristocracy." He discusses the pros and cons of mandating judicial term limits, requiring three-judge panels to issue injunctions against the implementation of voter initiatives, picking state and federal judges with greater care, creating systems to rate judges, putting cameras in courtrooms, amending the Constitution (as Judge Bork desires) to make court decisions subject to legislative revision by a majority vote, and giving judges less public approbation (a concluding passage is headed "Laugh at Him"). Boot also weighs various proposals for removing from the purview of the lower federal courts constitutional challenges to state and federal laws.
None of these proposals is likely to take hold. It's true that Congress has authority to decide what shall be the entire jurisdiction of the lower federal courts and the appellate jurisdiction of the Supreme Court. Congress can alter the composition of the judiciary and the number of judges. It can impeach judges, too. But with exceptions that can be counted on the fingers of one hand, the post-1994 Congress has done nothing of lasting consequence to check the imperious judiciary. Besides, even if Congress did act, state courts have already gone well beyond the federal courts in mandating state Medicaid financing of abortions, equal spending among school districts, and numerous other areas.
In the end, we are left with Bork's observation that the "courts respond to the dominant social and cultural forces in American life." Our contemporary courts are out of order because our present-day intellectual culture is out of order. It is a culture that has attempted to marginalize religion even though most Americans not only believe in God but believe that religion is vital to addressing contemporary problems. It is likewise a culture that has distorted the meaning of our representative democracy by forgetting or denying that the Founders rightly sought to check the will of temporary, factious majorities only the better to empower the will of persistent, non-factious majorities.
Out of Order explains well how this corrupting intellectual culture has codified itself in public law through the agency of judges. What the book does not show is the way back. Perhaps there is none -- short of the long, hard task of completely reforming our intellectual culture. But the first step in any task is understanding why we have to undertake it, and in his trenchant new book Max Boot has made clear for the ordinary reader the costs of our imperious judiciary.