265. Why is the American judiciary so reactionary?

The title doesn't mean "conservative."  I mean reactionary in the sense of "one who attempts to revert to past political conditions", which Nilkanth Sharma at the since-closed online collective IMC India says is a dictionary definition, although he doesn't specify which dictionary it's from.   

The New Dictionary of Cultural Literacy (via Answers.com) offers a less elegant formulation:  "An extremely conservative person or position that not only resists change but seeks to return to the 'good old days' of an earlier social order."  The first part of the definition just swaps one label for another, and the middle part is meaningless (resisting reactionary change isn't reactionary), but the last part gets to something close to the idea in Sharma's definition.

The American judiciary is reactionary in that sense.  And by "judiciary" I don't mean individual judges.   All American judges are conservative (no matter how some of them might kid themselves) in the sense that their job  is to enforce (and reinforce) existing power relationships.  (See post 256.)   The most basic point about the judicial system is that it serves the interests of the powerful - who else makes law?   But such status-quo conservatism is almost the opposite of reaction.   You don't serve the king by seeking the restoration of his predecessor.

No, I'm talking about the judiciary as a whole, not about judges as individuals.  The judiciary as an institution is reactionary in a way that, I'm confident, almost no judges are.

The deutsche Wikipedia offers one very useful term to describe political reaction: antidemokratisch.   Even before heads started to roll, 18th-century aristocrats worried about  "mobocracy."  The young David Hackett Fischer, in his first book, The Revolution of American Conservatism: The Federalist Party in the Era of Jeffersonian Democracy, describes Federalists tarring the Jeffersonians as "mobocrats."  The prologue to Sean Wilentz's The Rise of American Democracy: Jefferson to Lincoln cites James Kent deploring the destructive "democracy of numbers and radicalism" of the Jackson Era.

We're so used to using "democracy" as a synonym for "good" or "desirable" that it's almost hard to take in what those American patriots of the early 19th-century were saying.  But the Americans of the day got their drift: the Federalists evaporated as a political force almost as quickly as Perot's Reform Party.  (The Federalist viewpoint, however, lives on in the blogosphere.)

The fizzle of the Federalist Party didn't mean the anti-democrats lost all power.  James Kent - still better known today as Chancellor Kent - is remembered, at least among fellow judges, as one of the "giants of the law."   And the most influential Federalist following President Adams' defeat was, of course, John Marshall, the since-deified Chief Justice. 

Wilentz quotes a letter Marshall wrote the very morning of the day on which his duty as Chief Justice required him to swear in President Jefferson: "The democrats are divided into speculative theorists and absolute terrorists: With the latter I am not disposed to class Mr. Jefferson."  Not that he was ruling it out, mind you.

The anti-democratic principles of Marshall and Kent continue to influence us to this day.  Wikipedia reports that mobocracy (or its synonym, ochlocracy) "is sometimes employed as a pejorative term for majoritarianism."  Since 1963, the U.S. Supreme Court has used the word "majoritarian" 55 times, each time as a pejorative term for democracy.  "'Standing up to what is generally supreme in a democracy: the popular will,'" is what judges do, according to Justice Ginsburg, who was quoting Justice Scalia.

Ninth Circuit Judge Stephen Reinhardt wrote, in one of the many opinions he's gift-wrapped for the religious right (have leftists investigated the possibility that he's a mole?), that "It is the highest calling of federal judges to invoke the Constitution to repudiate unlawful majoritarian actions".  (What makes those actions "unlawful"?  A federal judge repudiated them.)

The idea that democracy needs to be prevented is right at the heart of the judicial project.  That's what it means when statutes or referenda are declared unconstitutional.  But it's also what it means whenever crucial evidence is suppressed: the people are not allowed to have this criminal statute enforced in this particular case, because something more important than the people's will is involved. 

Who decides what's more important than the people's will?  Here's a hint: not "certain of the lowest class in the community, who are alike destitute of property and principle, and may be emphatically stiled the rabble", as Jacob Bigelow, Jr., described by Fischer only as "one Federalist", put it in 1807.  (Was this the Jacob Bigelow?  Fischer doesn't say.) 

The anti-democratic spirit is one way in which the American judiciary, as an institution, is deeply reactionary.   Not conservative, but reactionary: pining for the political order of the ancien régime, in which the unreason of the mob was held in check by the firm hand of society's natural leaders.

There's another way in which our judiciary is reactionary, and now I'm talking about individual judges: They identify with strength, defined in survival of the fittest terms.   They daily display contempt for weakness.  What makes you think it's the government's responsibility to do for you what you failed to do for yourself?  "[U]nder the natural order of things society is constantly excreting its unhealthy, imbecile, slow, vacillating, faithless members".  If you're so weak as to allow yourself to become the so-called "victim" of a violent crime, consider yourself excreted.

Comments

[neilalice]

Another reason our courts are so reactionary is that our democratic branches are less and less (small d) democratic. The political pressure placed on the courts by the legislature is steadily decreasing because even though the population of the US has tripled in the past century, the House of Representatives has not increased in size.

http://www.census.gov/population/www/censusdata/apportionment/history.html

Every vote today matters less than the corresponding vote of our grandfathers. And when you factor in the salutary expansions of the franchise for women and minorities, you can readily understand decreasing voter turnouts.

There's a solution, but it sounds perverse: We need more politicians.

This is a scarcity problem. Each seat today represents at least three times as many voters as a century ago. Fewer individual voices now can be heard, and each seat is comparatively more valuable, harder to get, and more expensive. Each legislator is more conservative in thought and action because each legislator has far more to lose than their predecessors.

More seats would fix these problems. Shoot, it'd even be more expensive to buy ... er ... lobby for political influence because there would be more palms to grease. Even C-SPAN would be better as the new legislators fought to get their (reduced) share of camera time.

Sure, this wouldn't make the Lochner-like issues go away (nice link to post 70 btw). But under our current system of checkless balances, I can't imagine any sitting Supreme Court justice changing a vote due to political pressures in the manner of Justice Roberts and his switch in time to save nine.