Judicial Power and the American Character. - book reviews

Robert Nagel Oxford University Press, $29.95, 156 pp.

Thomas More observes with approval in A Man for All Seasons that "this country's planted thick with laws from coast to coast." That may have been the take of my profession's patron saint on his society, Renaissance England, but what are we to make of the same situation in our allegedly "over-lawyered, over-regulated" late twentieth-century America? Two contemporary jurists, Richard Posner, a federal appellate judge, and Robert Nagel, a law professor, offer thoughtful but different views.

Because of his position you might expect Judge Posner to be a votary of legal rules, but his antagonistic attitude toward the regulatory state is revealed up-front in his title. Law is something to be overcome because it generally restricts our ability to follow our preferences and desires. For Posner, a professed classic liberal individualist, the only laws that are really good are those that promote freedom, both personal and economic.

Before being appointed to the bench by President Ronald Reagan, Posner was a law professor at the University of Chicago and one of the founders of the Law and Economics school which sought the ultimate justification for legal rules in their ability to promote "wealth maximization." That mantra epitomized a happy marriage of utilitarianism and capitalism and allowed Posner and his colleagues to argue that everything should be for sale (even babies), with the less government regulation the better. To those of us inclined toward a broader perspective, the legal economists seemed to know the price of everything and the value of nothing.

Without forsaking his efficiency theory, Posner now appears to have mellowed a bit and is anxious to establish a more human, multidimensional profile. He wants to also be known as a Millian liberal and a pragmatist, but without the unexplainable (to Posner) left-wing tinge that seems to infect others of that outlook.

Few jurists, even those who are not appellate judges with cases to decide and opinions to write, can demonstrate a familiarity with the wide range of legal thought displayed in this very readable collection of essays and comments. Posner's grasp of constitutional theory, feminist jurisprudence, and critical race theory is first-rate. And while he brilliantly picks at perceived weakness in those schools, he is generous at appropriate times with praise for those who are his intellectual adversaries.

But the sadness of this brilliant man is his truncated vision. True to his individualistic instincts he believes that everyone's end is ultimately found alone. His thought thus seems to lack any broader sense of justice, any understanding (found in all codes from the time of Hammurabi to the present) that law exists to protect the weak from the strong. For Posner, we all should be free to compete as equals, Bambi versus Godzilla.

Along those lines, Posner spins an imaginative tale about a monopolistic medieval craft guild to use as a metaphor for the "cartelized professionalism" of American law practice up until the last several decades. But he sees no problem with the rapacious commercialism that has been the contemporary result of more competitive practices among law firms. In like fashion, a market-driven pragmatism seems Posner's base-line answer to all our country's social problems. He thus appears the embodiment of Robert Nagel's fear "that conservative justices will be captive to the instrumentalist assumptions of liberal individualism."

But in other segments of his book, Posner offers hope of something larger. When he reviews the actions of judges in Nazi Germany, he acknowledges the horrific inadequacies of a legal positivism that is blind to the deeper issues of human dignity. And in a chapter fittingly titled "What am I? A Potted Plant?" he convincingly refutes judges like Robert Bork and Antonin Scalia who speak for "strict constructionism," "original intent," or whatever other fallacious theories hold that judges can avoid "making law" while interpreting it. Invoking the vision of Justice Benjamin Cardozo, Posner recognizes that judicial legislation is not only inevitable, but should be acknowledged as an appropriate instrument to achieve social ends that are responsive to human needs.

While Posner thus begins as a hard-core Reaganaut but comes out showing promise as a sensitive pragmatist, Nagel's book is a jeremiad from start to finish. His theme is the moral disintegration of American society and how the federal courts are encouraging it. Far from holding us to our higher principles, the Supreme Court (and most academic legal theorists) are, according to Nagel, reenforcing "our pleasure-seeking, our lack of civic responsibility, and our moral opportunism." Nagel presents an erudite argument and his thesis has all the righteousness of another lawyer/social philosopher of the Reformation era, John Calvin.

Unlike Calvin, Professor Nagel doesn't invoke God as the backstop of his virtuous regime, but he does have several devils, chief among them Supreme Court Justices Louis Brandeis and William Brennan. Their active constitutional vision of a confident, tolerant, and generous people has, according to Nagel, "obscured the risky and imponderable nature of our collective moral decisions" and given us a society where anything goes.

For example, in a famous case a few years ago a man who had fathered a child by a woman married to another man sued for visitation and custody. California law denied him those paternity rights and the majority of the Court agreed, refusing to countenance the results of this "adulterous affair." Justice Brennan, however, was willing to find the California law unconstitutional, when, as in this case, the father had established a loving relationship with his natural child.

Hard cases, as they say, make bad law, but Nagel doesn't seem to understand that we should be able to tell people, "Go and sin no more," without condemning the tenderest of human bonds. There's precedent for such a compassionate attitude in the understanding Jesus showed when, contrary to the established rule, he prevailed upon an angry mob to spare a woman caught in adultery.

Professor Nagel's provocative book also questions why an essentially undemocratic body like the Supreme Court should get the last word on the troubling moral issues of our day. In allowing the Court to define our character, he fears, we have given the highest power in our social life to a group that seems inclined to let us follow our worst instincts. He presumably would have us resolve those difficult issues through democratic dialogue. But anyone who thinks that elected government will necessarily protect us from our worse instincts should look at Newt Gingrich's House of Representatives. And Nagel's bete noire, Justice Brennan, was hardly an enemy of an expanded political process. He authored important decisions opening up the legal and political system to the poor and disenfranchised segments of our society, giving one vote equally to each person and recognizing the "brutal need" that welfare recipients have to a fair hearing before their benefits may be terminated. For such decisions, Justice Felix Frankfurter derisively dubbed Brennan and three of his Warren Court colleagues the "Jesus quartet." Some of us would consider that a compliment.

Nagel's larger point, however, is well taken. The Supreme Court has hardly proven infallible during its two-hundred-year history. As Justice Robert Jackson noted soberly: "We're not last because we're right, we're right because we're last." Yet judicial review does serve as an important check on majoritarian excesses and, when used wisely, can even call us to the deeper, more enduring values that underlie our Constitution.

And the process of judicial legislation that Posner, in his better, Cardozean moments defends allows us to maintain an uneasy equilibrium between our ideals and the realities of a very imperfect society. After all, in the passage cited at the beginning of this review, Thomas More noted that the laws of England were "man's laws, not God's," but commended them nonetheless to a young protege willing to cut down the legal process to prosecute a man he believed to be bad. "And when the last law was down, and the Devil turned `round on you," More asked the zealous young man, "where would you hide?"

But such a judicious acceptance of the rule of law has its limits too, a point that even More, the Lord High Chancellor of the Realm, ultimately had to make by his martyrdom. More was always, as he said, "the King's good servant, but God's first."

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