Commentary Magazine

How Courts Govern America, by Richard Neely

The Imperial Judiciary

How Courts Govern America.
by Richard Neely.
Yale University Press. 233 pp. $15.00.

This is a confused, tendentious, and exasperating book. Yet, coming as it does from a sitting judge—Richard Neely, Chief Justice of the West Virginia Supreme Court of Appeals—it is an important document. Neely’s main purpose is to defend the judicial establishment against the charge of undemocratic usurpation that has gained attention in recent years. Instead of denying the extensive policy-making role which courts have assumed, Neely confirms it. Judicial intervention, he contends, is what makes democracy work; that is his answer to the critics of the imperial judiciary. Yet he also acknowledges limits on judicial power. While Neely’s analysis is clearly intended to consolidate the broad political power achieved by the judiciary after two decades of activist intervention, his recognition of the incapacities of courts in certain kinds of issues strikes a new and more cautious note in the literature of judicial activism.

Neely’s thesis is simple and straightforward—and hardly novel. He argues that the judiciary is required to govern America because the other institutions of government do such a miserable job of it. The legislature in particular does too little. It ignores the most serious social problems—decaying cities, rotten prisons, and overcrowded, inadequate hospitals. It fails to represent the indigent, the aged, blacks, and other minority groups who lack political organization and influence. In fact, Neely says (with the exaggeration that characterizes his writing), legislatures are designed to prevent things from getting done.

Executive officers and bureaucrats, on the other hand, do too much. Captured by special interests, they create “predatory” social programs which benefit client groups and enhance their own institutional power. And political parties are even worse. Their dishonesty and appetite for power is so great that American democracy would utterly collapse if the courts did not stand guard over the ballot box and prevent systematic fraud by the parties.

Neely has no quarrel with the basic perception of the judiciary as an undemocratic institution. Indeed, he delights in drawing foolish analogies between American courts and, say, “military juntas of banana republics.” But if courts are not democratic, he argues, neither are the other institutions of American government. The notion of democratic responsiveness, he writes, is a myth that obscures the indifference and inertia which are the most important forces in American political life. The truth is “that the democratic process can be successful only if it is supervised by a nondemocratic institution.” That institution is the judiciary.

To be sure, this gives the courts a lot of legislative and policy-making power. But in Neely’s experience, judges are better policymakers than anyone the other branches have to offer. They are experts in social science, have received superior educations, and possess greater knowledge and experience of society in general than other decision-makers. In short, judges are “intelligent, resourceful, and concerned human being[s].” That is why people turn to them for protection against other governmental institutions and the political process.



Having described the superior qualities of government by judiciary, Neely considers the sources of judicial authority and legitimacy. It is at this point that his analysis becomes confused. Drawing on his experience on the bench, Neely identifies himself as a legal realist. He states, for example, that in deciding cases, judges do not follow the Constitution or legal rules; they form policy judgments based on their own attitudes and values and then use “casuistic legal reasoning” to justify the result they desire. Constitutional law, according to Neely, is an elaborate deception in which judges speak in code words—“legal mumbo-jumbo”—to conceal the real reasons for their decisions. Neely contends it has ever been thus: judges in the Anglo-American legal tradition have always been “surrogate sovereigns,” deeply involved in policy-making.

But if he is a legal realist in describing how courts operate, in considering the sources of judicial authority and prestige Neely celebrates the qualities of neutrality and objectivity. These, he says, distinguish the courts from the other branches of government and provide the key to judicial legitimacy. According to Neely, the judiciary does not ally itself with interest groups. It thereby “prevents itself from becoming an adversary force and retains its position of either neutral arbiter or balancing force.” Courts are especially virtuous because they do not engage in bureaucratic aggrandizement, what Neely calls “institutional self-dealing.” Judicial neutrality is further encouraged by strict procedural requirements and careful public scrutiny. Suddenly sounding like a judicial conservative, Neely reminds us that constitutionalism and the rule of law depend on the resolution of controversies by “a neutral arbitrator making a principled decision.”

Unfortunately, it is not true that courts lack a sense of institutional self-interest and ambition, or that they have no inclination toward bureaucratization. On the contrary, as studies are beginning to point out, there is a disturbing trend toward the bureaucratization of judicial functions, from the selection of cases to the writing of opinions. More importantly, however, Neely’s conception of politics is itself truncated and unrealistic, concerned only with government officials making deals with vested interests. Since the judiciary does not have deals to make, Neely concludes that it is nonpolitical or neutral. He is completely oblivious to the issue of democratic accountability and responsibility. Haying concluded that none of the institutions of government is democratic, he ceases to regard the idea of democratic decision-making as meaningful. A large body of opinion thinks otherwise.

But why should a legal realist want to retain the idea of judicial neutrality? Because, to put it in a nutshell, belief in’ a distinctive judicial function, based on the impartiality and objectivity of individual judges, continues to be a significant feature of American political culture. For Over fifty years legal realists have been saying that constitutional principles and legal rules are a mystification, that courts are merely political institutions, that the social consequences of judicial decisions, rather than any special fidelity to neutral principles and procedures, confer legitimacy on the courts. Yet as opinion surveys have shown, public acceptance of and confidence in the courts still depend heavily on judicial objectivity and impartiality. The realists have a hard time accepting this fact, but in some sense they must come to terms with it. Hence Neely’s attempt to integrate the concept of judicial neutrality into his argument.

Superior though government-by-judiciary may be, even Neely forced to admit that the courts cannot do everything. They are neither qualified in a practical sense nor constitutionally authorized to do so. There are, in short, limits to judicial power.



When may courts properly intervene in policy-making? According to Neely, when the issue at stake is of concern to the public as a whole rather than to a special interest; when the petitioning group lacks access to other policy-making agencies; or when the legislature has avoided dealing with an issue. More specifically, Neely states that where the relief or reform sought is principally money, judicial intervention is not appropriate. In this connection he relates that when the school-financing question came before the West Virginia Supreme Court he dissented from the opinion mandating equal expenditures in all school districts.

The trouble with judicial remedies that necessitate public expenditures, Neely points out, is chat spending requires taxes, and courts “have no responsibility for increasing taxes, an unpleasant task which devolves upon elected officials. . . .” To put it more accurately, courts do not have the power to tax, an incapacity directly related to their nonrepresentative nature. All this may seem pretty elementary, and it is distressing that things have got to the point where it is necessary to invoke bedrock fundamentals—such as democratic control over taxation and spending—in order to restrict judicial power. Neely’s recognition of this limitation on the courts is nevertheless significant.

Neely says in conclusion that the way to improve judicial performance is to explain more clearly to the public the political role courts play—a role dictated by the failings of other institutions. The courts’ distinctive function is to break through impasses that occur in the political system, and according to Neely judges must be left free to decide when and where such impasses exist. Yet courts do not really have the last word. Judicial intervention, Neely observes, depends on what the other branches of government are willing to tolerate.

Constitutional politics in the United States has not yet degenerated into the kind of chaotic institutional factionalism and rivalry depicted in Neely’s account. But if judicial imperialists persist in their challenge to the basic principle of democratic control of public policy, it may yet come to that.

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