As late as the early 1960’s, Justice William O. Douglas was widely regarded as a disgrace to the bench even by many lawyers who shared his social and economic views. Douglas’s contempt for legal craftsmanship was seen as sloppiness; his visionary opinions were taken as evidence that he was angling for the presidency; and his solicitude for those he considered underdogs was perceived as favoritism.
By the end of the 1960’s, however, a new and very romantic ideal of judging had begun to take shape. In eulogies, tributes, law-review articles, and legal journalism, judges began to be praised for qualities that would once have been considered problematic: compassion rather than impartiality, boldness rather than restraint, creativity rather than craftsmanship, and specific results regardless of the effect on the legal order as a whole. In the 1990’s, Douglas would surely have basked in the “Greenhouse Effect”—a term (named after the New York Times‘s Linda Greenhouse) for the warm reciprocity between activist journalists and judges who meet their approval.
This great change was set into motion by the appointment of Earl Warren as Chief Justice in 1953. President Eisenhower’s choice of Warren was an unusual move, for the new Chief Justice had spent almost all his professional life in electoral politics. After serving as California’s attorney general, he became a power in the state Republican party and then a popular governor. He was Thomas E. Dewey’s running mate in 1948, and a serious contender for the Republican presidential nomination himself in 1952.
Nothing in Warren’s background had prepared him for the fine-gauge work of opinion writing. He was impatient with the need to ground a desired outcome in constitutional text or tradition. As described by an admirer, Warren was a man who brushed off legal and historical impediments to the results he felt were right; he was not a “look-it-up-in-the-library” type.
What he was, above all, was a statesman, and although scholars may argue about its foundations in constitutional text and tradition, the Warren Court’s decision in Brown v. Board of Education was indeed a great act of statesmanship. Those academics who downplay the importance of Brown in the struggle for racial justice have underrated its effects on attitudes about race relations—effects that in turn helped to bring about important political changes like the Civil Rights Act of 1964 and voting-rights legislation. The Warren Court laid its prestige on the line in a bid not only to dismantle official segregation, but to delegitimate racially discriminatory attitudes. That wager was successful. Though racial prejudice has not been eradicated, it has no respectability at all in contemporary American society.
The effects of Brown on the legal profession and on the legal order as a whole were another matter. And here it was not Warren but William Brennan, appointed to the Supreme Court by Eisenhower in 1956, who came to incarnate those less salutary effects most fully.
Brennan was of humble origins. The son of Irish immigrants, he made his way to Harvard Law School—encouraged by his trade-unionist father who told him that a lawyer could do a lot for working people. Brennan did go into labor law, but enlisted on the other side of the cause that had meant so much to his father. After some years as a successful corporate practitioner in New Jersey, he became a trial judge and rose in time to the New Jersey Supreme Court. On the U.S. Supreme Court, he became a towering hero to those who shared his view that the Court had not only the power but the duty to promote social and political change.
Described by his biographer, Kim Eisler, as neither the most brilliant nor the best writer on the Court, Brennan during his long tenure may nevertheless have had the most influence on the general direction of its decisions. Few lawyers would disagree with the New Yorker’s evaluation, on Brennan’s retirement in 1990, that he had come “to personify the expansion of the role of the judiciary in American life.”
Even toward the end of his career, as the composition and mood of the Court changed, Brennan was often able to beat the odds and further his vision. As portrayed by Bob Woodward and Scott Armstrong in The Brethren, Brennan “cajoled in conference, walked the halls constantly and worked the phones, polling and plotting strategy with his allies.” In later years, when his colleagues declined to follow him on such excursions as judicially banning capital punishment or abolishing the custom of prayer at the opening of legislative sessions, Brennan went out on the hustings, calling on state courts to take up the cudgels.
In speeches and writings, Brennan encouraged state judges to exercise their powers of constitutional review in new and creative ways. State courts, he pointed out, could interpret their own constitutions so as to provide even more rights than are afforded under the federal Constitution. Like the fox in Aesop’s fable, the wily Brennan cajoled whole flocks of jurists into dropping their reserve. “State courts cannot rest,” he wrote, “when they have afforded their citizens the full protections of the federal Constitution. State constitutions, too, are a font of individual liberties, their protections often extending beyond those afforded by the Supreme Court’s interpretation of federal law.”
Unlike many adventurous judges, Brennan had well-developed views of judging and did not mind discussing them. Here he is in a 1988 essay:
The Constitution is fundamentally a public text—the monumental charter of a government and a people—and a Justice of the Supreme Court must apply it to resolve public controversies. For, from our beginnings, a most important consequence of the constitutionally created separation of powers has been the American habit, extraordinary to other democracies, of casting social, economic, philosophical, and political questions in the form of lawsuits, in an attempt to secure ultimate resolution by the Supreme Court. . . . Not infrequently, these are the issues on which contemporary society is most deeply divided. They arouse our deepest emotions. The main burden of my 29 years on the Supreme Court has thus been to wrestle with the Constitution in this heightened public context, to draw meaning from the text in order to resolve public controversies.
That passage can instructively be compared with views often expressed in the past by Justices Oliver Wendell Holmes and Louis D. Brandeis. Holmes insisted that legislatures, no less than courts, were the ultimate guardians of the liberties and welfare of the people. “About 75 years ago,” he said as a very old man, “I learned that I was not God. And so, when the people want to do something I can’t find anything in the Constitution expressly forbidding them to do, I say, whether I like it or not, ‘Goddammit, let ’em do it.’”
Brandeis for his part emphasized that, where vexing social problems were concerned, it would often be more advantageous to leave state and local governments free to experiment than to impose uniform and untested federal mandates upon the entire country. The states, he said, were like “laboratories” where innovative approaches to novel problems could be tested and refined or rejected.
Although one of the opinions of which Brennan was proudest was on legislative reapportionment, he maintained an uncharacteristic silence on the role of the elected branches in resolving the issues on which “society is most deeply divided.” The reason must be that the way he saw his own life’s work, as indicated in the above passage, put him in direct competition with the popular branches. Quoting Justice Robert Jackson, he made no bones about his position that, right or wrong, the Court was to have the last word: “The Justices are certainly aware that we are not final because we are infallible; we know that we are infallible because we are final.”
Brennan’s approach to judging could not be more remote in spirit from Holmes’s structural restraint. Nor did Brennan have much use for the prudent avoidance of the appearance of judicial imperialism that was characteristic of the first great shaper of the Court, John Marshall. Brennan did not hesitate to claim, regarding the Court’s powers: “The course of vital social, economic, and political currents may be directed.”
Energized and prodded to no small degree by Brennan, majorities on the Warren and Burger Courts actively pursued a high-minded vision of empowering those individuals and groups they perceived as disadvantaged. When deference to the elected branches served those ends, as in many affirmative-action cases, Brennan deferred as humbly as any classical judge. When the decisions of councils or legislatures got in his way, he invoked expansive interpretations of constitutional language to brush them aside.
While Brennan was not one to let text or tradition stand in the way of a desired result, he knew how to turn his corners squarely. But he did not share the devotion to judicial craftsmanship that characterized the work of colleagues like John Marshall Harlan or Byron White. Nor did he show much concern about the probable side-effects of a desired result in a particular case on the separation of powers, federal-state relations, or the long-term health of political processes and institutions. With respect to such matters, he was impatient with what he considered to be abstractions and technicalities.
When it came to compassion, Brennan had plenty for those he made (or wished to make) winners, but he showed little sensitivity toward those he ruled against. His heart went out to Native Americans when a Court majority permitted the federal government to build a road through sacred Indian places on public land. But in striking down a longstanding and successful New York City program providing remedial math and reading teachers to poor, special-needs children in religious schools, Brennan was pitiless. It took a dissent by Justice Sandra Day O’Connor to point out that the majority ruling, written by Brennan, had sacrificed the needs and prospects of 20,000 children from the poorest families in New York, and thousands more disadvantaged children across the country, for the sake of a maximalist version of the principle of separation of church and state.
The new model of bold, assertive judging has also had its exemplars in the lower courts. One federal appellate judge famed for his crusading decisions was the late J. Skelley Wright. Looking back on his role in expanding landlords’ liability for the condition of leased premises, he wrote in 1982:
I didn’t like what I saw, and I did what I could to ameliorate, if not eliminate, the injustice involved in the way many of the poor were required to live in the nation’s capital. I offer no apology for not following more closely the legal precedents which had cooperated in creating the conditions that I found unjust.
The romantic ideal also fired the imaginations of judges in the capillaries of the legal system, the sites of the everyday administration of justice described in The Federalist as “the great cement of society.” A longtime District of Columbia Superior Court judge, Sylvia Bacon, told the American Society for Public Administration that “There is a sense among judges that there are wrongs to be righted and that it is their responsibility to do it.” As for the role of the Constitution and the law in guiding the judge’s sense of right and wrong, Judge Bacon brusquely remarked: “Legal reasons are often just a cover for a ruling in equity (basic fairness).”
By “fairness,” Judge Bacon apparently did not mean anything so prosaic as keeping an open mind to the arguments, and applying the relevant law without regard to the identity of the litigants and without regard to a particular outcome. Her notion was more visceral: “Plain and simple sense of outrage by the judge.” Such views were no impediment to Judge Bacon’s election to a seat on the American Bar Association’s board of governors in the 1980’s.
Yet they would have been anathema to the Founders, for whom impartiality was the sine qua non of judicial justice. Massachusetts, adopting John Adams’s words, built the concept into its Bill of Rights:
It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial, and independent as the lot of humanity will admit.
From the early years of the Republic to the present day, every American judge has taken a vow to carry out his duties without fear or favor:
I do solemnly swear that I will administer justice without respect to persons, do equal right to the poor and to the rich, and that I will impartially discharge and perform all the duties incumbent upon me, according to the best of my abilities and understanding agreeably to the Constitution and laws of the United States, so help me God.
Some critics of the world view implicit in this oath say that judging “without respect to persons” can lead to inhumane results by ignoring important differences—between men and women, rich and poor, black and white, strong and weak. If the critics had their way, the oath would be revised to read something like this:
I affirm that I will administer justice with careful attention to the individual characteristics of the parties, that I will show compassion to those I deem disadvantaged, and that I will discharge my duties according to my personal understanding of the Constitution, the laws of the United States, and such higher laws as may be revealed to me.
Besides, the critics observe, impartiality is often just a mask covering various sorts of bias. They point to historical research that has found more than a little clay on the feet of classical idols. It may well have been Holmes’s obnoxious eugenic views, for example, rather than his vaunted restraint, that prompted him to uphold a state statute providing for the forced sterilization of mental patients—with the cruel comment that “three generations of imbeciles are enough.”
But are judicial compassion and responsiveness viable substitutes for the elusive ideal of impartiality? Few would dispute that judges should be able to empathize with the people who come before them. But in the early years of this century, adventurous judges were extremely tender-hearted toward big business, while showing little compassion for women and children working long hours in factories.
Let us acknowledge that until someone figures out how to make judges from other than human material, neither classical nor romantic feet will be a pretty sight. The real question, then, is which judicial attributes, systematically cultivated, offer the most protection against arbitrariness and bias.
Whatever one may conclude about the right mix of qualities for the special circumstances of the Supreme Court, it is hard to imagine that the routine administration of justice can benefit from an increase of compassion at the expense of impartiality. A close-knit, relatively homogeneous community can perhaps get along with a system where village elders reach decisions on the basis of their personal sense of fairness and their informed concern for the parties and the community. But that pastoral model cannot serve for an ethnically and ideologically diverse nation where litigants are strangers to the judge and often to each other. Under such conditions, the liberties and fortunes of citizens cannot be left to the mercy of each judge’s personal sense of what procedures are fair, what outcome is just, who needs protection, and who deserves compassion.
The combination of subjective judging and an elected judiciary is an especially unhappy one. In the 40 states where elections play a role in selecting or retaining some or all judges, the American Judicature Society reports that problems related to campaign advertising and financing are serious and worsening. What does it portend for a judge’s impartiality when his election ads look just like a district attorney’s: “Tough on Crime”? Or for her independence when she accepts large campaign contributions from lawyers who regularly appear in her court?
For cynics who maintain that judicial independence and impartiality are simply a sham, the logical move is to select judges according to their ideological leanings. But that is a dicey business—and not only because “sensitivity” and “compassion” are easier to fake than intelligence and integrity. The problem with subjective judging is that, sooner or later, the tables are apt to be turned when ambitious judges with the “wrong” ideas ascend to the bench. That is why many journalists and legal academics who once cheered the progress of assertive judging on the Supreme Court had second thoughts as the composition of the Court changed.
But why should the country’s response to an old problem flagged by Alexander Hamilton—the scarcity of individuals with the requisite skill and integrity—be to accept a thoroughly politicized judiciary? One alternative that has worked well for some liberal democracies is a meritocratic civil-service judiciary, staffed with graduates of judicial-training academies. But we need not depart so radically from our own traditions. Surely our wise course is to insist on judges who have demonstrated a capacity for self-restraint (structural, interpretive, and personal) as well as a commitment to the time-honored judicial practices that help to promote those qualities.
The relevant skill is to maintain principled continuity in the system, while deciding particular cases in a way that even the losing party can accept as fair. No one is born with that sort of virtuosity. But Anglo-American judges over centuries have developed numerous safeguards against lapses and partiality. Chief among them is the requirement that a judge expose his reasoning in a written opinion. Since a perfectly reasoned opinion may rest on arbitrary premises, a judge is also expected to explain the facts and principles on which each decision is based and to follow those principles consistently in future cases.
Such technical skills in the judiciary are more necessary than ever, given the complexities of current economic and social conditions. And yet the supply of competent judges at all levels is indirectly threatened by several habits associated with adventurous judging.
As every lawyer knows, part of an appellate court’s work involves maintaining a reasonable degree of coherence and predictability in the law. If that unglamorous but crucial task is not performed well, the courts falter in their fundamental obligation to decide like cases alike. Practitioners then stumble, too, for they cannot give reliable advice to clients who are trying to plan for the future, or to decide whether to prosecute, defend, or settle claims.
It has, however, become steadily more difficult for appellate judges to ensure reasonable reckonability and coherence in the legal system. Legislatures and administrative agencies rarely take the trouble to fit new statutes and regulations into the framework of existing law. Rather, they leave it up to judges to make some sense of a welter of federal, state, and local enactments that are often conflicting or overlapping—some overly detailed, others airily vague. The intellectual difficulty of many of these cases surpasses anything that ever came before Marshall’s Court in the early days of the Republic. In consequence, the quality most required of an appellate judge is often a craftsman’s art and painstaking care.
Thus it is a cause for concern that specialists in areas like tax, antitrust, labor, pensions, maritime law, insurance, social security, patents, trademarks, and copyrights increasingly complain of a decline in Judicial workmanship.
After all, what will be left of the principle that like cases should be decided alike if every judge feels free to brush aside precedents, statutes, and bargained-for contractual provisions as mere technicalities? What will be the effect on the economy if our present imperfectly functioning system degenerates into a nonsystem, a chaotic heap of idiosyncratic decisions? Are we really ready for the rank-and-file judiciary to cast off restraints that rested lightly on the shoulders of men like Holmes and Learned Hand? For Judges who slip the mailed fist of power into the velvet glove of compassion?
In constitutional cases, romantic judging also exacts a toll on the democratic elements in our form of government. When Warren and Burger Court majorities converted the Constitution’s safety valves (the Bill of Rights, due process, equal protection) into engines with judges at the controls, they wreaked havoc with grass-roots politics. The dismal failures of many local authorities in dealing with racial issues became pretexts for depriving citizens everywhere of the power to experiment with new approaches to a wide range of problems that often take different forms in different parts of the country. Constitutional provisions designed to protect individuals and minorities against majoritarian excesses were increasingly used to block the normal processes through which citizens build coalitions, develop consensus, hammer out compromises, try out new ideas, learn from mistakes, and try again.
Elected officials have offered little resistance to judicial inroads on their powers. On hot issues, they often are only too happy to be taken off the hook by the courts. But each time a court sets aside an action of the political branches through free-wheeling interpretation, self-government suffers a setback. Political skills atrophy. People cease to take citizenship seriously. Citizens with diverse points of view lose the habit of cooperating to set conditions under which all can flourish. Adversarial legalism supplants the sober legalistic spirit that, in the 19th century, Alexis de Tocqueville admired in the American people. For, as Abraham Lincoln warned,
if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal.
In retrospect, one can see that the rise of bold judging proceeded for the most part with good intentions. Earlier in the century, state-court judges often had to take the initiative to keep judge-made law abreast of social and economic changes. In the wake of the New Deal, federal judges had to improvise techniques for dealing with regulatory law. Then in Brown—and also in the one-man, one-vote cases—the Supreme Court had to exercise statesmanship in addressing legal aspects of the country’s most pressing social problems.
The achievements of gifted judges in meeting those challenges made it difficult for some of them—as well as for their less capable colleagues—to resist the impulse to keep on doing justice by their own lights. That those lights were not always powered by authoritative sources was easy to disguise, even from themselves. It was a case of successes leading to temptations, of a good thing taken to extremes.
In finding our way back from these extremes, the beginning of wisdom is to recognize that, whatever the pros and cons of adventurous judging by the Supreme Court on momentous occasions, romantic ideals are a poor guide to how judges throughout the system should comport themselves as a general matter. The unique political role of the nation’s highest court may require its members at times to show the sorts of excellence that are traditionally associated with executives or legislators—energy, leadership, boldness. But, day in and day out, those qualities are no substitute for the ordinary heroism of sticking to one’s last, of demonstrating impartiality, interpretive skill, and responsibility toward authoritative sources in the regular administration of justice.
As things now stand in the topsy-turvy world of legal journalism, however, a judge will win no plaudits for such heroism, and may even earn contempt for not being interesting enough. When Byron White stepped down from the Supreme Court in 1993, the New Republic’s cover story called him “a perfect cipher.” Admitting that White was “a first-rate legal technician,” a writer for that magazine sneered at him for being “uninterested in articulating a constitutional vision.” To this writer, it was evidence of White’s “mediocrity” that he was hard to classify as a liberal or a conservative.
What made White hard to classify, of course, were the very qualities that made him an able and conscientious judge—his independence and his faithfulness to a modest conception of the judicial role. His “vision,” implicit in nearly every one of his opinions, was not that difficult to discern. As summed up by a former clerk, it was one
in which the democratic process predominates over the judicial; [and] the role of the Court or any individual Justice is not to promote particular ideologies, but to decide cases in a pragmatic way that permits the political branches to shoulder primary responsibility for governing our society. . . . The purpose of an opinion . . . is quite simply to decide the case in an intellectually and analytically sound manner.
Though White’s competence, independence, and integrity did not make for lively copy, he was a model of modern neoclassical judging. As for the future, it is heartening that White’s replacement, Ruth Bader Ginsburg, took the occasion of a speech shortly after her appointment to embrace the model of the “good judge” as represented by Learned Hand. Quoting Hand’s biographer, Justice Ginsburg said:
The good judge is “open-minded and detached . . . heedful of limitations stemming from the judge’s own competence and, above all, from the presuppositions of our constitutional scheme; [the good] judge . . . recognizes that a felt need to act only interstitially does not mean relegation of judges to a trivial or mechanical role, but rather affords the most responsible room for creative, important judicial contributions.”
As Justice Ginsburg’s former colleague Robert Bork has observed, the key check on judicial authoritarianism will always be the judge’s own understanding of the scope and limits of judicial power—and the insistence of a vigilant citizenry on having judges who will resist the temptation to remake the constitutional design for government and who will wholeheartedly comply with the judicial oath’s promise to do equal justice without respect to persons.