Rush to judgment

Slate's Dahlia Lithwick reviews a really bad book that needs to be taken more seriously.

The argument here is not new. In fact, one of the reasons it's impossible to call Men in Black a work of legal scholarship is that there is not an original piece of analysis in it. Levin is railing against the Supreme Court for being a bunch of "activist judges" that "now sits in final judgment of essentially all policy issues, disregarding its constitutional limitations, the legitimate role of Congress and the President, and the broad authority conferred upon the states and the people." So far so good. The country needs a smart, scholarly book anatomizing for lay readers the arguments against the high court's ever-increasing involvement in political life.

But this is not that book. Men in Black never gets past the a.m.-radio bile to arrive at cogent analysis. Each of the first three chapters ends with the word "tyranny." Absent any structure or argument, this book could just have been titled Legal Decisions I Really, Really Hate. Levin follows the lead of lazy pundits everywhere who excoriate "activist judges" without precisely defining what constitutes one. He offers four random examples of "activist decisions" which mysteriously include Dred Scott v. Sandford (which was nothing of the sort) and Korematsu v. United States (a decision he trashes for its deference to executive-branch authority in wartime shortly before shredding the current Supreme Court for refusing to uphold the same principle in last summer's enemy-combatant cases). Levin rails for the first half of his book about the ways in which the high court usurps Congress and the president, then rails about the court's failure to strike down their campaign finance law.

And his attempts to draw telling distinctions between similar cases—any legal scholar's primary task—are almost laughably off-mark. Take this example: Discussing last summer's Rasul v. Bush case, Levin dismisses Justice Stevens' analysis distinguishing enemy combatants in a 1950 opinion from the enemy combatants at Guantanamo Bay because "the principle is the same" and "the two cases are identical in two significant respects." If judges in fact got to decide cases based solely on the fact that "the principle is the same"—that is, that each case is kinda analogous—we really would have a runaway judiciary.

Enough already. The book is silly. But the maddening question here is why Levin, Limbaugh, and—as of yesterday, Tom DeLay—have stopped threatening just "liberal activist" judges and have started threatening the judiciary as a whole. Levin, recall, is excoriating a court composed of seven Republican appointees. He's trashing the body that's done more to restore the primacy of states' rights, re-inject religion into public life, and limit the rights of criminal defendants than any court in decades. He seems not to have noticed that the Rehnquist court is a pretty reliably conservative entity. Reading his hysterical attacks on Justices O'Connor and Kennedy, you'd forget they are largely on his side and substantially different creatures from the court's true liberals. But Levin seems as incapable of distinguishing between jurists as he is incapable of differentiating between cases or doctrine. He's happy to decimate the court as a whole.

The federal judiciary is overwhelmingly made up of the appointees of Republican presidents. That conservative commentators and, more and more often, conservative Congressmen are railing against them is disturbing. They really don't want to do away with "activist judges." They want to do away with judges altogether. And, more and more often, people are taking that literally.