How Courts Govern America
Enchanted by their own work, judges, like poets, are sometimes tempted to turn back to switch on the lights in the tunnel of creation. To their annoyance they find the place already occupied by a crew of professors busily painting the walls and putting up signposts. What are these people doing there? Who should know judging better than a judge? Impatient to put things straight and to bring us the inside story, Justice Neely of West Virginia, like other judges before him, has set out to rescue us from what he calls the “meanderings of academic lawyers.”
One of the troubles with such an undertaking is that those who do things well are not always best at describing the nature of their work. Judicial writing about adjudication has often been little more than a genteel recitation of what judges seem to believe people would like to think of them as doing. Detachment, time for systematic reflection and acquiring theory and learning outside the law are hard to wring out of a life of deciding cases.
Happily, there is nothing at all genteel about Richard Neely’s bright, perceptive, and informative book. Although he is only forty, Justice Neely writes from long experience. He was for several years a member of the state legislature, and for eight years has been a judge on West Virginia’s court of appeals. His book offers nothing less than an analysis of the nature of constitutional law in America and of judicial decision-making at the highest level.
Constitutional law, he tells us, is hardly law at all in the usual understanding of that term. It rarely provides standards of sufficient precision to evoke agreement among a clear majority of lawyers over the right answer. The application of “constitutional law” by the courts is rather a political arrangement that we have worked out to curb the abuses that would otherwise be inflicted upon us by the institutions that are the leading emblems of our democracy—the legislature and the executive.
Neely’s legislative experience has convinced him that untempered democracy is both unbearably unfair and cripplingly inefficient. Elected representatives want to be reelected or to ascend to greater things and dare not spend their time on matters that fail to attract the interest either of well-organized voting blocs or of powerful businesses or organizations that can supply campaign money or get out the vote. Addressing issues not thrust before them by such groups will bring either little notice or the excessive notice that makes enemies. When Neely served in the legislature, he tells us, five times as much attention was devoted to dog and horse racing as to all the problems of state institutions, including those dealing with prisons and physical and mental health. In defense against the importunings of the rapacious and the selfish, American legislators have erected elaborate procedural barriers that snugly permit them to accomplish very little at all. This at least fends off the worst excesses demanded by lobbyists but also virtually …