(2 of 5)
With the 49% growth in the number of civil lawsuits since 1970, courts have seemingly become a forum for redress of all things unfair in life. Old judicial barriers that kept people out of court unless they had been personally harmed have been so loosened that not long ago the Supreme Court allowed five George Washington University law students to oppose a railroad-rate surcharge. Why? Because, the students argued, the surcharge would increase the cost of recyclable goods and thus mean more beer cans littering public parks. (They lost.) Conservatives like Yale Law Professor Robert Bork, who was U.S. Solicitor General during the Nixon Administration, understandably worry that "democratic government gets pushed back and back, as judicial government takes over."
For all their power, judges remain remarkably unaccountable and unknown. Most state judges are elected, but by voters who usually have no idea whom they are voting for. Federal judges are appointed for life; they can be removed only by a two-thirds vote of the Senate, and so far only four have been so punished (the last in 1936). One despotic old coot, Judge Willis Ritter of Utah, was allowed to stay on the bench, despite his erratic behavior and abusive temper (he even threatened workmen with contempt for making too much noise near the courtroom), until he died at 79 last year.
Faceless men in black robes, judges speak a tongue that laymen find baffling. They are beholden only to higher judges, which means the Supreme Court is beholden to no one at all. Said blunt-spoken New Yorker Robert Jackson, a Supreme Court Justice in the Roosevelt and Truman years: "We are not final because we are infallible, but we are infallible because we are final."
Heralded into court by the bailiffs command, "Hear ye! Hear ye!" (Oyez! Oyez! in the Supreme Court, which prefers Old French), judges understandably take an exalted view of themselves. An Indiana judge, sued for authorizing in 1971 the sterilization of a 15-year-old girl without her knowledge, proclaimed in his plea for judicial immunity: "An aura of deism is essential for the maintenance of respect for the judicial institution." The judge's claim of something like divine right worked: last March, the Supreme Court ruled, 5 to 3, that a judge could act maliciously, exceed his authority and even commit "grave procedural errors" and still be immune to personal-damage suits. Judges must be free to follow their own convictions, said the court, though Justice Potter Stewart dissented: "A judge is not free, like a loose cannon, to inflict indiscriminate damage."
Letting judges roll around like untethered cannons seems indefensible at a time when the public clamor is all for accountability in government. Yet, before judges are judged too harshly, it is necessary to understand how they fit into the political process and became so powerful.