Commentary Magazine


Out of Order by Max Boot

Out of Order: Arrogance, Corruption, and Incompetence on the Bench
by Max Boot
Basic Books. 288 pp. $25.00

By its author’s own admission, Out of Order is a polemic—to be precise, an impassioned attack on the wayward members of the American judiciary. In one hair-raising anecdote after another, Max Boot, an editor of the Wall Street Journal editorial page, takes aim at all the “backslappers and palm greasers, toadies and lickspittles” who, thanks to our politicized processes of appointment, have been transfigured into black-robed custodians of the law. For Boot, those robes are threadbare and torn, revealing judicial sins of a high order.

First on his list of offenses is personal corruption. In this category we meet, among others, Judge A. Ted Bozeman, Alabama’s “backwoods Blackstone,” who saddled General Motors of “Dee-troit” with a $150-million jury verdict in an empty civil suit. In doing so, Bozeman endorsed the race-baiting antics of a plaintiff’s attorney who just happened to employ much of the Bozeman family and to be representing Mrs. Bozeman in a similar suit. Then there is Judge Paula Lopossa of Indianapolis. A jurist with a weakness for elderly miscreants, she declined to jail an old roué who maimed a woman after beating her, as well as the geriatric rapist of a nineteen-year-old girl—the latter assault being mitigated, in the judge’s mind, by the victim’s provocative apparel.

The next circle in Boot’s inferno is inhabited by the incompetent, among them the ineffable Lance Ito. In a sharply drawn sketch of the O. J. Simpson trial, Boot shows how Judge Ito turned his courtroom into a Ringling Brothers circus, allowing such outrages as the playing of the race card by the demagogic Johnnie Cochran. As Boot succinctly concludes, “ ‘Judge Ego’ was fatally lacking in the gravitas needed to preside over a major trial.”

Finally, we arrive at arrogance, a generic transgression for which Boot reserves his greatest scorn. He sees such arrogance expressed chiefly in the naked political activism of judges who have seized for themselves the prerogatives properly belonging to other branches or levels of government. Of special concern to Boot is the federal bench’s hostility to federalism itself. Time and again, he charges, liberal judges have manipulated the Constitution to buck the democratic decisions of states whose citizens do not happen to share those judges’ sensibilities.

Under this heading, Boot thrashes Judge Thelton Henderson, of the U.S. district court in San Francisco, for his imperious (if ultimately unsuccessful) attempt last year to derail California’s Proposition 209, a ballot initiative banning the state from using racial quotas and set-asides. Likewise, Boot upbraids the Supreme Court for deciding, in Romer v. Evans (1996), that Coloradans had denied equal protection to homosexuals by voting in a statewide referendum against giving them special preferences. As Boot observes, not only are these rulings bad law, but they haughtily ignore the role that state autonomy can play in providing different parts of the population with “a high level of self-determination,” thus “dissipat[ing] separatist pressures” in our diverse society.

In connection with judicial activism Boot also focuses on the legal device known as a consent decree, whereby a municipality can put an end to troublesome litigation by allowing the courts to monitor one or another part of its domain. Under such arrangements, power-hungry judges now perform a range of duties entirely outside their competence. They double as wardens, releasing hard-core criminals in the name of more commodious jails; as urban planners, ensuring that residential developments include a fixed percentage of minority residents; and as one-man finance committees, imposing taxes to fund their various redistributionist schemes.

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Apart from having no authority to legislate or execute, judges, Boot points out, are also singularly ill-equipped for those roles. Since they address policy questions only when and as such questions happen to arise in litigation, judges often have no feeling for the wider issues at stake. Nor do they possess anything like the capacity of executives and legislators for gathering facts and bringing to bear the advice of outside experts. Worst of all, judges are rarely required to face voters, and in this sense cannot be held accountable for the consequences of their decisions. Is it thus any wonder that, indulging their subjective sense of justice without benefit of moderating influences, judicial activists have presided over some of our most disastrous experiments in social engineering?

As for why such impositions continue to be tolerated, and even venerated, Boot points to the enduring prestige of Brown v. Board of Education (1954), “the Magna Carta,” in his words, “of judicial activism.” In abolishing school segregation without offering any real constitutional justification, the Supreme Court, he argues, set a destructive precedent. Whereas it was once thought that a federal court had no business telling a state and its citizens how to conduct their affairs unless they were clearly violating some provision of the Constitution, judges began to take it as their duty to drag the benighted masses kicking and screaming into a more enlightened age.

To Boot, the essence of democracy is that even the most execrable and anachronistic practices should be undone democratically, through legislative action or constitutional amendment. The alternative is a tyrannical “juristocracy”—which is what he concludes we are in danger of veering toward.

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Max Boot’s news from the front lines is a welcome complement to recent works on judicial power by Robert H. Bork (who contributes a foreword to this book), Richard A. Posner, and others. Out of Order is a much less analytical work than these, but Boot is a superb reporter, and his piquantly related stories stoke the reader’s indignation just as they are intended to do.

Still, a polemic based on anecdotes always carries the danger that its subjects, though portrayed as paradigms, may instead be aberrations. This danger is not lost on Boot, who occasionally interrupts his stream of vitriol to assure us that he is not out to blight all jurists with the transgressions of a few. Consciously or not, however, that is sometimes the effect Out of Order conveys, especially in the chapters on corruption and incompetence.

Boot is more successful in his attack on judicial activism, where his conclusions do not rest so heavily on the deeds of assorted scoundrels and bumblers. If he falters here, it is paradoxically from a certain timidity in following through on the logic of his own argument. Writing about the creeping subordination of liberty and democracy to judicial fiat, he concedes that “[a]t least with Brown, no matter how tangled its reasoning, the result is one we can all applaud.” Perhaps so; but when he then goes on to protest against the subsequent steering of Brown into new terrain like racial and sexual preferences, Boot inadvertently suggests that his objections have more to do with particular outcomes he finds unpalatable than with the skewed process itself.

Finally, one wishes Boot had said more about how the malfunctions he catalogs might be mended. The shoddy selection procedures that guarantee a certain percentage of bad judges are, in the end, the handiwork of our lawmakers, who should be brought to account. Both the legislative and the executive branches are also guilty of helping to promote judicial activism by fudging on politically controversial issues and leaving the courts to sort out the details.

And then there is the press. The biases of the print media are, of course, a matter of record. But television’s role may be somewhat more ambiguous than Boot allows. Though he is convinced that the presence of television cameras was the reason the circus was in town during the Simpson trial, it may actually be the reason we knew the circus was in town. Banning television from trial courts, as Boot proposes, could deprive us of one of the few relatively unfiltered sources we have for keeping tabs on the judiciary.

In sum, Max Boot has written a book that ably and entertainingly describes the misdeeds many judges commit. But when it comes to our out-of-order judiciary, what happens in the courtroom may be only the place to start.

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About the Author

Andrew C. McCarthy directs the center for law and counterterrorism at the Foundation for Defense of Democracies. In somewhat different form, this article will appear in his book, Willful Blindness: A Memoir of the Jihad, soon to be released by Encounter Books. Copyright 2008 by Andrew C. McCarthy.