African-American Economist Thomas Sowell noted the decline of American jurisprudence undermining the rule of law.  He wrote, in part:

• “Rather, it has been unnecessary to prove anything in order to get cases put before juries who are free to hand out other people’s money in whatever amounts strike their fancy, in response to whatever appeals the plaintiff’s lawyers make.

• “Scientific study after scientific study has failed to turn up evidence to substantiate the claims made by those suing Dow Corning over breast implants. Meanwhile, back in the courts, judges and juries are handing out multimillion dollar awards in damages.

• “The fate of one corporation is not a major national issue but what it implies about our whole system of justice has grim implications for the future of this country. As a critic said, more than half a century ago, ‘Law has lost its soul and become jungle.’ That is even more true today. The media have a heavy responsibility in all this. Their willingness to serve as a megaphone for all sorts of politically correct groups and movements has sent them off and running like a pack of hounds after any business accused of anything by…favorites of the anointed. The very idea that the burden of proof is on the party who makes a legal charge has gone out the window as far as whole categories of charges are concerned.”

• “Despite Karl Marx’s use of the term ‘proletariat’ to describe the working class, the Roman proletariat was not so much a working class as an underclass supported by government handouts. But the parasites in ancient Rome also included a large and growing bureaucracy.”[1]

In the essay “The Meaning of Law,” Sowell observed:

• “Judges have made it increasingly difficult for American society to protect itself from anyone or anything, by creating new ‘rights’ out of thin air and by leaning over backward for the benefit of those with anti-social behavior.

• “In short, judges have taken the law into their own hands, instead of carrying out the laws duly passed by democratically elected representatives, reflecting the concerns of a self-governing people. The pretense that judges do this to uphold the Constitution is wearing so thin that growing numbers of people now see this as the fraud that it is. For more than a century and a half after the Constitution was written, the greatest legal minds in the history of the Supreme Court failed to discover these new criminal ‘rights’ discovered by intellectual lightweights and ideological zealots on the High Court during the past 30 years.”[2]

Reversing the Presumption of Innocence

• “Nothing has been more deeply embedded, for centuries, in the Anglo-American legal traditions than the notion that the accused is innocent until proven guilty. Yet there are both civil rights and antitrust cases where only a few flimsy statistics are enough to force the accused to try to prove his innocence. This perversion of the law is not only accepted but applauded because it reaches politically correct conclusions.”[4]

Judicial Activism

• “Where the Constitution of the United States is a barrier to this expanded role of judges, then judges have been urged to ‘interpret; the Constitution as a set of values to be applied as judges choose, or updated as they think appropriate, rather than as a set of specific instructions to be followed. But judicial activism is a blank check for going in any direction on any issue, depending on the predilections of particular judges…

• “The sophistry of ‘results’-oriented judges can make a mockery of the very concept of law, including the Constitution of the United States.”[5]

• “Some judicial activists not only make rulings that stretch the law but even go directly counter to it…That this was counter to the plain meaning of the Act was not explicitly denied in the U.S. Supreme Court opinion written by Justice William J. Brennan. But Justice Brennan rejected ‘a literal interpretation’” of the Civil Rights Act, preferring instead to seek the ‘spirit’ of the Act in Congress’ ‘primary concern…’  The emergence of this decision from the clear language of the Act to the contrary was likened to the great escapes of Houdini, in the dissenting opinion of Justice William H. Rehnquist.”[6]

• “Although Justice William O. Douglas was a classic judicial activist in the sense of paying only the most token attention to the Constitution in making rulings based on his own policy preferences—the most famous example being basing his ruling in Griswold v. Connecticut on ‘emanations’ from the ‘penumbras’ of the Constitution—he nevertheless deferred to legislators who passed liberal social legislation, using language dear to the heart of advocates of judicial restraint, saying that the court should not be a ‘superlegislature’ but leave social policy to Congress and state legislators. But when the existing law represented social policy that he disapproved, Justice Douglas did not hesitate to intervene and declare it unconstitutional—as he did in Griswold v. Connecticut—even if he had nothing more on which to base his ruling than ‘emanations’ that he somehow discerned coming from the ‘penumbras’ of the Constitution, which not even the greatest legal minds, on or off the court, had ever discerned before.”[7]

• “A later New York Times editorial declared ‘a willingness to strike down Congressional laws’ to be ‘the most common objective criteria’ of judicial activism. This redefinition sidesteps the whole crucial question whether the laws over-ruled were in fact consistent or inconsistent with the Constitution of the United States.”[8]

Incentives for Activist Judges

• “Genuine judicial activism, like many other social phenomena, may be more readily understood by examining the incentives and constraints facing those involved. One constraint on judges’ actions that has clearly weakened over the years is the disapproval of peers, whether in the judiciary or among legal scholars in the law schools. Judicial activism for litigants or causes favored by the prevailing vision of the intellectuals can expect acceptance, at a minimum, and in many cases celebration or lionizing of activist judges. In short, incentives favor judicial activism.

• “Judges, like intellectuals, usually become famous among the general public only when they step out beyond the bounds of their professional competence to become philosopher-kings deciding social, economic or political issues. Not even Chief Justice Earl Warren’s admirers tried to portray him as a great legal scholar Both he and Chief Justice Roger Taney a century earlier became famous for making sweeping pronouncements about society on a sociological, rather than a legal, basis for their landmark rulings. With pronouncements going beyond the range of their expertise or competence being virtually a prerequisite for popular prominence, it is hardly surprising that so many judges, like so many intellectuals, have said so many things that make no sense.”[9]

Other Topics

• “Looking at laws in terms of the subjective intentions of those who wrote them is not only a more complicated approach, it is an approach that seeks or claims to discern the value judgments or the ‘spirit’ behind the laws—which gives judges far greater latitude for interpretation, and thus far more opportunities to adjust the laws to meet ‘the needs of the time,’ ‘social justice,’ or whatever other synonym for the individual predilections of particular judges. But critics of judicial restraint project such difficulties onto others who are not looking behind laws, but undertaking a far more straightforward task of reading laws as explicit instructions, rather than as general statements of values.”[10]

• “For one thing, the votes which provide the political, legal and moral authority of laws are votes on what is publicly set before those who vote. In other words, nobody voted on what was in the back of somebody else’s mind. Moreover, nobody can obey or disobey what is in the back of somebody else’s mind. It was the publicly known meaning of the words of the laws, ‘to be understood in their usual and most known signification’ as of the time they were used, according to Blackstone, that determines how a judge should interpret them.”[11]

• “Such attempts to change the question from the plain meaning of a law to an esoteric quest for discovering what was behind the creation of the law are often used by those who espouse judicial interpretations that go beyond what the law explicitly says—and sometimes even directly counter to the written law, as Justice William J. Brennan did in the Weber case.”[12]

• “Professor Ronald Dworkin defended the Weber decision on grounds that ‘the question of how Title VII should be interpreted cannot be answered simply by staring at the words Congress used.’ The verbal virtuosity of referring to simply “staring” at words—apparently as the only alternative to adventurous reinterpretations—contrasts sharply with Holmes’ statement about simply reading English intelligently.

• “Saying that it is hard or impossible to discern what was meant by a law has often been a prelude to making decisions that ignore even the plainest meanings—as in the Weber case—in order to impose notions currently in vogue in elite circles as the law of the land. Dworkin and others have openly advocated as much, which makes their tactical agnosticism about ‘intent’ a red herring. For those who do not intend to follow the original meaning of laws, the ease or difficulty of discovering that meaning is irrelevant, except as a distracting talking point.”[13]

References

1. Sowell, Thomas (2011). The Thomas Sowell Reader. Basic Books, Kindle Edition