The concept of a “liberal” krytocracy [rule by judges] — one fired by a desire to transform the social order it governs — may have unique at the time of its advent in post-World War II, post-Brown America.
Perhaps the leading twentieth-century practitioner of constitutional law-making in disregard of the rights of citizens to govern themselves was William Brennan… [T]he inflated sense of the Court’s role he seems to be have brought to its work helped to make the Court to resemble a College of Cardinals telling members of the faith what to believe and how to live. The Brennan “encyclicals” required the community to respect a broad range of individual and minority rights, and left little discretion to local congregations or constituencies to believe, or to act upon the belief, that somewhat more communitarianism and less individualism or pluralism might be preferable. The encyclicals were not presented as serious interpretations of a written legal text, but were rooted in natural law sanctioned by reference to the indeterminate text of the Fourteenth Amendment and to what Justice Brennan presumed to be the better instincts and ideals of the people. He was fairly said to be a non-interpretivist engaged in “a search for political-moral knowledge, for answers to the various questions as to how we, the polity, should live our public, collective life, or life in common” and sometimes our not so public life, too. Unlike Cooley or Brandeis, Brennan seldom if ever gave weight to the political judgment of elected officers, perhaps especially those elected at state or local levels. Frankfurter only somewhat unjustly described the Brennan Court as animated by “self-willed, self-righteous power lust.” Whether lustful or not, the Court embraced the belief that anything a legislature could do, it could do better.
There is irony in the denotation of this anti-democratic restoration of judicial supremacy as “liberal,” a sort of code word for the moral preferences of the recently emerged “national class.” As Christopher Lasch explained the irony, many ruling meritocrats revolted against the moral values of those less-esteemed persons who merely vote, pay taxes, bear and raise the Republic’s children, and put themselves at risk in its defense. A visible means of avoiding the noisome duty of persuading these lesser persons of the correct world view was to constitutionalize political issues that would otherwise be subjects of popular governance. The meritocracy in revolt may, if Lasch is correct, have supplied the receptive audience needed to induce high court judges to discard the caution advocated by earlier “liberals” favoring the right to self-government. Indeed, Frankfurter despised that his colleagues were determined to be immortalized in “the Valhalla of liberty” and “in the meantime to have the avant-gard of the Yale Law School…praise them.”
A different interpretation is that of Michael Sandel, who blames the Supreme Court for displacing the earlier American tradition of shared power with a new vision of “freedom” elevating individual autonomy and governmental neutrality at the expense of the bonds uniting us in a common venture. men venture. Evidence to support his hypothesis can be found not only in the conduct of the Court, but also in legal scholarship disregarding the possibility that life-tenured judges ought to or could be influenced in the formulation of doctrine by “the common thoughts of men” or other communitarian concerns, expressing wonder that anyone should be concerned about the Court’s “anti-majoritarianism” and dismissing the concern as platitudinous.
Whatever the social-psychological origins of this anti-democratic “liberalism,” it called into question the validity and integrity of the traditional political rhetoric of the Republic. Life-tenured judges are not in any useful sense “we, the people,” however much one might wish to believe otherwise. To speak of krytocracy as a government of or by the people is a transparent fraud on citizens’ political rights. While none can deny, as Justice Robert Jackson affirmed, that the “very purpose” of constitutions is
“to withdraw certain subjects from the vicissitudes of political controversy,” when “certain subjects” include many or most of those of greatest interest to citizens, the effect, as he noted, is to withdraw the life-giving oxygen from the air sustaining self-government.
As we have seen, our exemplars were mindful of at least three grave problems inherent in political rule by judges. First, as Cooley’s message at Harvard reflected, they believed that a judiciary disregarding the “common thoughts of men” will be resisted by those whose thoughts it disdains. In this view, people do not change their minds, and often not even their behavior, because of the utterances of senior citizens in black robes, especially if they are imbued with the individualist spirit of Protestantism. Judgments of high courts purporting to effect social change are therefore often useless and sometimes counterproductive. On the other hand, Cooley and his successors supposed that people will more readily adapt to policies debated and decided by democratic methods in which they participated, especially if their dissenting views have been prudently accommodated. Second, my exemplars recognized that judges as a class are not selected for their political and moral wisdom, nor is there reason or experience to suggest that they acquire it in office. “Wayward” as Hand observed the vagaries of popular assemblies” to be, judges of all political persuasions are capable of equally colossal political blunders. There are at least three reasons for this. One is that the judicial process is not well suited to the presentation and assimilation of political wisdom. The Brandeis brief to the contrary notwithstanding, legislatures and administrative rulemakers are, as Freund observed, structurally more adept at “mastering statistics and economics,” as Holmes prescribed, because they have direct access to technical expertise as well as to popular estimates of such expertise and have no obligation to address an imminent dispute when they have well-founded doubt about the right solution. A second reason, as Freund emphasized, is that the judiciary can seldom broker prudent compromise between competing values, and compromise is more often than not the wisest policy. That “the best is the enemy of the good” is an adverse comment on much judicial policymaking. A third reason is that the doctrine of precedent to which American courts are necessarily committed dictates that they cannot readily correct their policymaking mistakes. Having written, the judicial hand moves on. For all these reasons, political blunders by the judiciary may be more likely and more costly, even though they are more likely to bear the marks of principled decisionmaking…
The efforts of judges to transform the social order without the general moral support of the citizens are not very effective and are often counterproductive…
After Brown, it seemed that every beleaguered individual group in America, including perhaps some beleaguered only in their own perceptions, fancied that the court in its anti-democratic role might relieve their distress. The idea of popular sovereignty came to be viewed by many American lawyers…as a mere impediment to social reform. And the role of the federal judiciary became once again redolent of the overbearing and pretentious role of the chancellor wielding power in the name of the king’s conscience…
While Brown stands as the shining example of the good deeds that politically animated, life-tenured judges may on occasion perform when their decisions are congruent with widely shared moral precepts, even the Court’s performance with respect to racial segregation is mixed and can be said at times to manifest misuse of its political power. When the Court at last ordered lower federal courts to reorganize and manage the public schools, and not merely in the South where segregation was de jure, it pitted its authority broadly against self-government in communities spread across the continent…
The spirit of Southern rednecks who wanted to impeach Earl Warren was nationalized in the politics of George Wallace, the angry governor of Alabama, who by denouncing the “pointy-headed intellectuals” marshaled a huge vote in the 1968 Democratic primaries in northern states. Many individual federal judges were subject to strenuous efforts to intimidate them; numerous Michigan bumper stickers called not for the impeachment, but the assassination, of Judge Stephen Roth for ordering bussed integration of all the schools in metropolitan Detroit, one of many cities in which school populations reflected segregated housing patterns caused in minor part by historic misuses of local political power reflecting racist impulses. That extremely hostile reaction was most visible in the westside suburbs, which were populated by the offspring of twentieth-century immigrants from eastern Europe who bore no responsibility for historic harms and who perceived no reason why their children should bear the burden and inconvenience of desegregating African-American children for sins they did not commit. Judge Roth, himself an immigrant, was likely responding in his order to the evidence that the burden of desegregation, if limited to the city of Detroit, would fall entirely on those least responsible for it and leave free of any inconvenience the monied, “national” class residing in Grosse Pointe and Bloomfield Hills. While an appeal from his order was pending, he died of a heart attack, quite possibly caused by the stress associated with the odium attached to his decision.
The effect outside the South was to uproot neighborhood schools in black neighborhoods as well as white. Sacrificed in the effort to promote racial integration was the traditional relationship between public education and the family. Derrick Bell, made the point that it was not merely white parents, but also black, whose responsibility and authority over the education of their children was diminished. There is even reason to suspect that the psychological justifications for desegregation were harmfully
self-fulfilling, perhaps even foreseeably so. While it would be unjust to suggest that there was a clearly superior approach to the achievement of public school desegregation or to blame the Court for the poor estate of public education in America at the century’s end, Brown II and its progeny surely made a contribution to the demise of public schools. And, over the longer term, public education as a means by which citizens share the tutelage of their children may be more vital to the Republic than the Constitution itself. On that account, the federal courts have substantially but belatedly abandoned the goal of racial integration of school children as one that is both unattainable and counterproductive. In the extensions of its application, Brown II has indeed been silently overruled.
School desegregation was the defining moment for the “liberal” Court and profession, but it was only a point of departure. With equally high purpose, the Court soon undertook by judicial decree to transform other aspects of American society. Near the top of the agenda was the transformation of state and local police…
The Court in 1964 went beyond its moral and political support in regulating police conduct. In a pivotal case, it held that the Fourteenth Amendment prohibited a state from using a confession secured by questioning conducted before the accused consulted his counsel. And, a year later, it held that the state must advise the accused of his right to counsel before questioning, else a conviction based in part on his confession must be reversed. These decisions were not well-received by those whose obedience was required, for at least three reasons. First, they appeared to require radical change in the customary practices of local police departments everywhere. Second, they coincided with a precipitous increase in violent crime in most American cities. Third, they resulted in the release of persons, many or most of whom were almost certainly guilty of serious crime…
The Court also undertook the reformation of state prisons. There can be no doubt of the squalid conditions of many of them, but whether judges run materially more humane prisons than wardens remains open to debate…
Justice Brennan in his retirement cheerfully forecast that “one day the Court will outlaw the death penalty. Permanently.” It seems never to have occurred to him that the abolition of capital punishment is properly a task for those who write and amend the constitutions and laws of the states and not for his College of Cardinals to decide without regard for citizens’ rights to self-government…
Among the most lawless of Justice Brennan’s opinions was his decision to savage by subtle means the popular institution of the right to jury trial in civil cases…
There is no principle of natural law by which the line between church and state can be judged. While justices may suppose that “the dissemination of science” is a “sufficient agent” of civic moral education to sustain a community capable of self-government, theirs is a “culture of disbelief.” The contrary belief of the Founders that religious life is needed to sustain the ties of community essential to democratic government is another that has not been falsified…
The new age of judicial heroics tracked the advent of the legal academy… Felix Frankfurter declared… “law and lawyers are what the law schools make them.” …industrialization creating Americans’ appetite for technical competence certified by academic credentials…
Since [1900], the legal academy has been drifting into the academic profession and away from the legal profession… The academic profession in America has at least since 1950 outranked the legal profession in social status, to those preoccupied with affect, the doctorate in philosophy in any discipline is a more luminous achievement than a mere law degree and license…
Academization threatens the very benefits it confers by reducing the prospect that studious authors will be taken seriously by those bearing public responsibility. If Holmes’s lightning of genius should strike a law professor today, it is unlikely that “the real world” would notice. The reasons for this are enumerated below. First, academic lawyers achieve status within their profession less by performing useful service to the Republic than by meeting conventional academic standards requiring the utterance of novel ideas pitched to a high level of abstraction. “The remoter and more general aspects of the law are those which give it universal interest,” Holmes said. In pursuing what seem to be issues of universal dimension, academicians tend to forego study of those lesser ones that they might be able to solve and on which public officers are likely to accept their counsel. The tendency to engage in cosmology, or what Linda Mullenix has denoted as “metarealism,” is likely reinforced by the increase in the number of law teachers holding doctorates in other more esteemed disciplines. Ironically, metarealism, even in the extreme form of nihilism denying the integrity of legal texts, is in post-modern diction often denoted as “pragmatism. Yet, as Charles Collier noted, there is very little legal scholarship today resembling three prosaic articles appearing together in an early issue of the Harvard Law Review: Brandeis and Warren, “The Law of Ponds”; Beale, “Tickets”; or Williston, “Successive Promises of the Same Performance.” Instead, legal scholars are prone to exhibit their mastery of almost any other discipline than law.
Second, most large legal ideas were entertained in the time of Justinian, if not even in the time of Hammurabi. There are no new continents of law to explore. Academic lawyers are in this respect in an unfortunate position not unlike that of gross anatomists, who have no hope of discovering a new organ in the human body and are therefore scorned by their medical re- search colleagues who have large mysteries to pierce and whose literature may achieve seeming miracles. This appears to be the realization expressed by Holmes when he quit academic life for the bench. Third, as Cooley remarked at Harvard, and as Cicero and Thucydides had previously observed, sound, useful legal ideas are generally conven- tional ones. So even Holmes conceded that law must respect “the habits of a particular people at a particular time.” “The life of the law is not logic, but experience,” he said in his most famous utterance. Good law expresses the culture of which it is a part and is therefore confined by the moral premises of that culture.
Ernst Freund made the point that: “It is not possible to work a [legal] system successfully if its fundamental justifi- cation is constantly questioned; or putting it the other way, a great system that has established itself will convert its disciples from skeptics into votaries, or will quickly get rid of them. Law, like other human institutions, is a working compromise, and the very fact that it is an appeal to reason demands assump- tions that must not be too closely questioned.”
This reality is odious to academicians of pure heart who regard it as their duty and their privilege to question all the premises of the social order. In this respect, there is a fundamental, but seldom noted, conflict of interest in academic law. Fourth, cloistered scholars are physically isolated from the universe in which real decisions are made. Sound moral judgment on public issues is an attribute not easily acquired within the academic cloister. To be useful advisers and critics to those exercising public responsibility, legal scholars would need to involve themselves in active politics to a degree that few do. Thus, in 1896 Woodrow Wilson, then president of Princeton University, deplored the tendency of professional academics to treat texts as “material” and “not life”; they do not, he said, reflect, so much as “they set forth schemes, [and] expound with dispassionate method.” “Their minds,” he perceived, “are not stages, but museums; nothing is done there, but very curious and valuable collections are kept there.”
Fifth, for reasons implicit in the foregoing observations, the academic enterprise encourages utopian dogmatization. It does not reward the practice of moral compromise, which…is the objective of democratic policies and law. The complex constitutional structure of the Republic was designed precisely to prevent the political implementation of dogma, to compel compromise… Utopianism in the academy has been reinforced by the tendency of the heroic judiciary to perform the role of Cardinals willing to issue decrees to effect all manner of benign results.
Sixth, public decisions…are reactive to immediacies… Even judges and lawyers sympathetic to positions taken by academics infrequently have time or energy to consult academic literature with the care required by turgid academic prose.
Seventh, academic authors are often disinclined to accept the modest role…as mere secondary authorities… To write such work [as 1883’s A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union by Thomas M. Cooley], authors must eschew novel thoughts and to that extent disavow not only academic status seeking but the more immediate satisfactions of self-expression…
Eighth, work on intellectual frontiers…often employs the professional jargon of another academic discipline, a jargon likely to impede, if it does not prevent, comprehension by judges and practicing lawyers… The university law school is increasingly a colonial outpost of the graduate school. A self-respecting law school serving the “national class” would be ashamed not to have on its faculty a broad sampling of scholars whose in- terests in law is incidental to a primary intellectual interest in another more academically respectable field, an interest certified by a doctorate in that field. Their work is often difficult to communicate effectively to persons outside the pertinent intellectual community.
Ninth, academic status is seldom acquired by work on the law and politics of local institutions. For the most respected academic lawyers, only the federal government or the international order is worthy of study. Work of the sort done by Freund with state and local governments is out of fashion because it does not command the attention and admiration of the “national class.”
These enumerated circumstances have an aspect of self-fulfilling proph- ecy. Teachers and writers who do not expect a hearing from those in power and not to invest themselves in the effort to address the nonexistent audience in ways that would be helpful to it. As a consequence, …much that now passes for scholarship by law professors is not written with an expectation that it might be read and used by those having public responsibility, with whom academic authors find little or no common ground. It is often discourse addressed to small audiences of specialized academic readers having little involvement in the immediate cares of the world. Academic lawyers therefore frequently achieve the fate of being ignored by those whom they ignore. Indeed, it may be questioned whether many legal academics are still lawyers or instead have become political philosophers. As such, they may be subject to the complaint made against some of the most eminent members of that esteemed discipline by Benjamin Barber:
“They have served the ideal of the enlightenment better than they have informed our political judgment. In substituting reason for common sense, they have declared the sense of commoners to be nonsense. Rights are philosophically vindicated, but only as abstractions that undermine democratic communities that breathe life into rights; justice is given an unimpeachable credential in epistemology, but no firm hold on action or on the deliberative process from which political action stems; talk is revivified as the heart of the political process and then recommended to citizens, but in a form that answers to constraints not of citizenship but of philosophy; civility is celebrated, but construed as incompatible with the sorts of collective human choice and communal purposes that give civility its political meaning; the past is resurrected, but only in order to disdain the present and mock the future.”
While many legal philosophers do, as Barber asserts, disdain the present and mock the future, most, like justices, are prone to suppose that their views are more consequential than in reality they are. They are disinclined to accept the reality that most audiences are no more influenced by moral reasoning than by what passes as legal reasoning. Richard Posner has ob- served the self-preoccupied aspect of work in moral philosophy: Moral philosophers pick from an ala carte menu the moral principles that coincide with the preferences of their social set, and they have both the intellec- tual agility to weave an inconsistent heap of policies into a superficially coherent unity and the psychological agility to honor their chosen principles only to the extent compatible with their personal happiness and professional advancement. Of course there are popular prophets who articulate a moral prece whose time has come, but whether the time for that precept has come heavily dependent on the experience of those to whom it is addressed. Lieber put it, “millions have died for similes… [but] politics are matters of realities not suppositions.” And many are the prophets of great eloquence and intellect who have been unable to find a receptive audience.
“No one is going to surrender his moral intuitions to moral theory, nor should he.”..
[Oliver Wendell] Holmes usefully cautioned us against relying too heavily on the moral language of the law, because it is chiefly an appeal to obedience and not an invitation to remake legal texts on the basis of more elevated moral reasoning. Changes in the moral language of the law will seldom if ever induce substantial changes in behavior or belief. Despite these enumerated disabilities, it remains a widely shared impulse of legal academics to discover, like astronomers, a new source of natural law, a new constellation of individual rights, to be invoked by life-tenured judges to decree the transformation of a gravely defective social order formed by an ignorant lumpenproletariat. An eminent example is Robin West, who finds in the inexhaustible text of the Fourteenth Amendment “anti-subordinationist” rights to be imposed as restrictions on democratic government.⁴² An overstated but pertinent criticism of her efforts is that
“Many of the new progressive strategies especially the suppression of free speech and the insistence that a radical vision is superior to that which the populace has developed over the years- are based on a profoundly antidemocratic misreading of the people’s choices…. [West] is ultimately an authoritarian in the deepest sense of the word, adopting traditional conservative tools to im- pose her outdated personal views on a public that has already soundly rejected them.”
There is, as one might expect, and as West exemplifies, a correlation be- tween the moral theorizing of legal academics and the dogma of “liberal” political correctness, because academic theory consistently favors, as Duncan Kennedy has listed: “Brown without delay and racial quotas, but civil disobedience, nonprosecution of draft card burners, the explicit consideration of distributive consequences rather than reliance on efficiency, judicial review of apportionment decisions, extensive constitutional protection of criminals’ rights, the constitutional protection of the right of homosexuals to engage in legislatively prohibited practices, the right to produce and consume pornography, and abortion rights.”
As Judge Posner has observed, there is often unresolved tension in this conven- tionality: “[They] favor abortion,… [but they] are against capital punishment…. They are for the theory of evolution when the question is whether creationism should be taught but against the theory of evolution when the question is whether there is a biological basis for differences in behavior between men and women. They want to regulate cigarette smoking out of existence, but they want to permit the smoking of marijuana. They are for the strongest possible public measures for safety and health, but they are against quarantining per- sons who are infected by the AIDS virus. 46 They denounce their predeces- sors for indifference to the fate of the Jews in Nazi Germany or the blacks in South Africa during apartheid, [but] have been for the most part indifferent to the genocides in Cambodia, Bosnia and Africa.”
West and others of like mind are thinking and writing about law. That is not visibly the case for some contemporary legal academics who, apparently despairing of their lack of influence on those who exercise political power, have withdrawn into a self-obsessive genre of literature celebrated as legal storytelling. Arthur Austin denotes them as Outsiders, against whom the “Empire Strikes Back.” While such art forms as legal story-telling may indeed be as irrelevant to law as Andy Warhol’s Campbell Soup cans are to artistic mastery, the Outsiders, like Andy Warhol, may be on to something. As a comment on the social utility of some of what passes for advanced legal scholarship, the Outsiders may have it about right.
On the other hand, one might wish to divert some of the energy of Outsiders to the vast and neglected opportunities to bring their humanity and intellect to the conduct of the more obscure public officers who run our cities, counties, school districts, and states, where modest gains in the pursuit of justice might be achieved, albeit without reward in the coin of academic status…
These disjunctions between academic thought about law and the work of courts or legislatures suggest that the legal academy bears little responsibility for the overbearing tendencies of the judiciary remarked in the previous chapters. What we may see are parallel, not sequential, developments within the legal profession. On the other hand, Frankfurter may have been accurate in describing the Supreme Court in its moments of hubris as seekers of the approval of the intellectual avant-garde.
While there were many academic critics of the Warren Court’s tendency to overreach its commission, their number diminished as those who remem- bered the 1930s were replaced by those who were attracted to law by their youthful hope to participate in broad social reform through constitutional litigation in federal courts. Those academicians who speculate as would-be Platonic Guardians are disposed to prefer that the Republic’s judges sit on a woolsack of discretion such as that of the feudal Court of Chancery and to applaud those who presume to do justice according to a ruling conscience or natural law that is at best the presumed wisdom of a ruling class.
For this reason, a vast amount of academic energy has been invested in the task of reconciling the constitutional role of the judiciary with democracy. Most of what can be usefully said on that subject was said at the time of ratification. For judges such as Cooley and Brandeis, the task of reconciliation was not especially difficult: Their view was that democratic legislation is valid unless explicitly proscribed by the text of a constitution ratified by the people and subject to modification by them; judicial review in their view is avowedly anti-democratic and should therefore be practiced with restraint assuring the moral and political primacy of legislation. However, the task of reconciliation becomes difficult and worthy of heroic intellectual efforts when thinking proceeds from the contrary premise that restraint should not be practiced and judges should be encouraged to enforce not only the text of constitutions, but also principles of natural law developed by academic discourse in political and moral philosophy.
Thus, an extensive academic literature argues that judicial review should be ever more intensive because of the deficiencies inherent in democratic legislation. Legislatures, it is said, are chiefly known as places in which we express our selfish impulses, an observation it would be difficult to contest. Because venal interest groups influence legislation, it is reasoned, government by decree emanating from the life-tenured elite is theoretically superior to democratic self-government. Others have striven to justify the overbearing conduct of the Supreme Court as a fulfillment of eighteenth-century republican expectations; these arguments tend to rest on the alleged congruence of the substance of the Court’s agenda with the politics of some founders. In essence, it has been suggested, the Court is somehow the real voice of the people, much as the king’s chancellor was the real voice of the Crown. Justice Brennan himself apparently deemed his principles to have the sanction of democratic self-government so long as the self-governing citizens accepted them, that is, did not rebel against his decisions. While he acknowledged the law he created and administered to be the product of his generation’s “experience and understanding, its passion and reason,” he was apparently untroubled that his passions were the product of his own experience and were not widely shared except among a limited professional class. Theories in this vein have been multiplied by academic authors, but a common theme has been that the Court should be more attentive to the advice of the moral philosophers of the academy and less attentive to “the common thoughts of men.”
Despite the enumerated limitations and overconfidence of legal academic theorists, their work has a synergistic effect. Academic theorists do, as Frankfurter observed, provide a receptive, sometimes even a fawning, audi- ence for heroic judges and give less frequent applause to text-bound legal doctrines. Justice Brennan, for example, could seemingly do no wrong. Even his extraordinary dissent in Michael H. v. Gerald D. received uncritical acceptance among theoreticians. Ronald Dworkin, Frank Michelman, and Kathleen Sullivan celebrated it as an exemplary “moral reading” of the Constitution, without expression of serious concern that such a moral read- ing is a finger in the eye of self-government.
While most theoreticians will on occasion acknowledge that not all morally correct opinions are also law, Judge Posner is not wrong to observe a tendency to conflation. That conflation is the risk feared by Brandeis when he questioned the teaching of philosophy. It tends to be a reason for the occasional attractions of academic moral philosophy to judges and the lawyers who appear before them. They, for the reasons stated by Mill, tend to be attracted to ideas empowering themselves. If the Holmesian lightning bolt of genius is that courts ought to be less constrained and more aggressive in the exercise of their powers, many judges and lawyers will experience a self-inflationary gratification from the message. A dramatic example of academic theory that may be taken too seriously by judges and lawyers is the discovery by academicians of international human rights law as a category of our national law…
These scholars reveal customary international law as yet another form of unenacted natural law to be enforced by life-tenured judges. That law is based on what judges call concern about current international conventions not ratified by the United States, or conceptions of justice in other countries around the world, about which the primary sources of information are the academic authors who urge its enforcement. For example, the South African Constitutional Court in 1995 was induced to decide the constitutionality of capital punishment substantially on the basis of international precedents; this is presented as a model for a global system to be enforced in the United States by the federal judiciary.
In early times, the federal courts were charged to enforce the law of admiralty having its origins in international practice and understanding and to customary law governing the relations between nations, such as the law of diplomatic immunity. In recent years, lower federal courts have in addition asserted jurisdiction to enforce customary international law of other sorts. The American Law Institute has now lent its support to the idea that customary international law, as discerned by the federal judiciary, is federal law, perhaps superseding even prior federal legislation. While not long ago it was possible to suppose that customary international human rights law was narrowly limited to such matters as genocide and torture, we are now told that the list is not closed and has, due to improved communications around the globe, grown to include gender discrimination, religious rights, rights relating to sexual orientation, and the right to be free from “hate speech.”
We are also told by contemporary Langdells that life-tenured judges “find,” and do not “make,” such customary international law, and we are assured that, also among the rights to be protected, is the right to live in a democratic society. The irony of this last assurance seems to be invisible to those who give it, nor does it dissuade life-tenured federal judges from repairing to Colorado in the summertime to attend seminars on customary international human rights law conducted by experts in that field. Or constrain other efforts to persuade the judiciary that they are members of “a global community” and that an international outlook on moral issues is more appropriate than obedience to the conventionalities of insensitive American habitats. When it was observed that the expansion of customary international law to include unenacted laws regarding “human rights” threatens to effect a vast displacement of state law made by judges and legislators who are accountable to the people they serve, Harold Koh responded by expressing disdain for state and local law, and for the right to self-government. For him, any matter having even secondary international effects is an appropriate subject for federalization pursuant to the foreign affairs powers of the federal government. If the federal courts have long decided the scope of diplomatic immunity, then it is in this view but a modest step for them to decide whether capital punishment violates an international norm. Nor should it matter that the United States has refused to ratify a particular convention, or has ratified it only subject to conditions precluding its appli- cation to displace state law. Koh seems to hope that if the life-tenured federal judiciary were not to impose as customary international law of their own devising (reflecting the presumably elevated morality of human rights scholars), American states might practice genocide on their citizens.
There was for a time a substantial evangelical campaign to transfer American legal traditions to developing countries. That campaign was aborted when its champions recognized that the economic and social infrastructure of the receiving nations is so different with respect to such matters as class and tribal rivalries that the American experience was simply inap- plicable. It is for the same reason nonsense to suppose that the issue of capital punishment, much less that of “hate speech,” can be universalized. It is amply difficult for American judges to resolve such issues in the context of an American culture of which they have at least some knowledge; to involve them in the administration of natural law principles derived from the whole of human experience is a form of cultural imperialism. It is also an invitation to judicial arrogance desensitizing the American legal profession to its responsibility for our own democratic institutions.
What is frequently lacking in much academic legal discourse is attention to those aspects of legal institutions that generate the loyalty of the citizens expected to sustain them by their obedience. As Burke said, “[I]n the groves of their academy, at the end of every vista, you see nothing but gallows. Nothing is left which engages the affections on the part of the commonwealth.” Rarely is recognition given in academic literature to the role of law as a confirmation of conventional morality and as a message of reason- able to the good citizens who do the Republic’s work that it is indeed their Republic.
While there is thus a synergy between these phenomena, the inter-relationships between heroic judging and theoretical scholarship are likely minor effects. As Lieber (who learned it from Savigny) and his adherents would have been quick to affirm, both developments are surely driven by larger forces operating within the legal profession and derived from the larger culture of which they are a part. Judges and professors, as well as many lawyers, are members of Wiebe’s “national class.” Their thoughts are the product of an industrial era, an age that believed all things possible, and even the remaking of a self-governing society into a utopia “void of crime and poverty” by technical experts on the bench. And they are also the product of a time when the Republic came to fill the role of a global empire threatened by an evil adversary that…personified mob rule. …It is the imperial America that has made the legal profession what it is at the end of the twentieth century, not the legal profession that made America.
Justice Byron White served as contrarian to the Supreme Court in the heroic age of Justice Brennan.
