RICHARD NEELY, who became the youngest judge of a court of last resort in the English-speaking world when he was elected to the West Virginia Supreme Court of Appeals at the age of 31, has a knack for speaking English. Depending on one's view of how a judge should conduct him-or herself, he is either lively and outspoken or irrepressibly outrageous. He caught almost everyone's ear a few months ago when he advised a group of elected magistrates on the ethics of their calling: "You certainly shouldn't own a whorehouse" and--here I've laundered the justice's English--"Don't go out and (engage in sexual intercourse with) 13-year-old girls." He also counselled his listeners not to call their election opponents "queers."
Neely, now 39 and the chief justice of his court, has focused his analytical powers and his way with words on the American judicial system. At first reading, the resulting book, How Courts Govern America, seems either a needed breath of fresh air or an exercise in cheap cynicism. On a second and fair reading, the book falls somewhere between those two extremes, although this conclusion requires one to take with a grain of salt the author's repeated assertions that he is, or has been, an opportunist and his sly comment that "the rewards of consummate cynicism cannot be lost on the reader."
It is Neely's thesis that activist, politically attuned courts "are the central institution which makes democracy work." That is not because, as a class, judges are all-wise. "The court system yields good results because... it is set up like the army: an organization designed by geniuses which can, when necessary, be executed by idiots."
It is the proper role of courts, Neely contends, to break the impasses inevitably reached by the other two branches of government, the legislative and the executive. Impasse and inaction are inevitable in legislative halls because "the most valuable thing which legislators have to trade is inactivity, because that is the product which they can most easily deliver." This is not an aspect of inertia, according to Neely, it is an aspect of political prudence on the part of elected officials who are not expected by their constituents to engage in too much boat-rocking. (We are not told why this does not also apply to elected judges.) The perfect legislator is one who remains "colorless, odorless, and tasteless." Furthermore, it is the author's firm impression, gained perhaps from his grandfather Matthew who was both a West Virginia senator and governor, perhaps from his own brief experience in his state's legislature, that "the legislature and the executive take idealistic, energetic, ambitious young men and turn them into whores in five years." (As if by magic, it is the other way around with judges: "the judiciary takes good, old, tired, experience whores and turns them into virgins in five years.")
The problem with the executive, acting through bureaucratic agencies, is that the agencies are so bent on self-dealing and job preservation that they cannot be depended upon to act in the public's best interests. According to Neely, "Much of the apparently ridiculous action of the courts is calculated to contain bureaucratic self-dealing to manageable proportions." These judicial intrusions into the executive branch are aimed at shifting "the responsibility for truly important decisions away from young, Ivy League-trained but inexperienced lawyers and administrators into the hands of older, more experienced, and more truly representative persons (i.e., judges) who have no institutional stake in the outcome of any given issue."
So what is the proper role of courts? Neely is nothing if not imprecise. He at first suggests that courts "serve the function of anarchists--they throw a bomb on the assumption that if the status quo is disrupted, the new status quo . . . must necessarily be better." Later on he refines the bomb metaphor in a manner that most of his readers will have anticipated. Neely advises that courts "are particularly suited to passing certain types of general interest legislation." Judges, even unwillingly, must become politicians.
There are some in Justice Neely's profession who might ask whether the existence of written constitutions, federal and state, does not raise impediments to judicial legislating. Neely's answer to us is that "lawyers, certainly, who take seriously recent U.S. Supreme Court historical scholarship as applied to the Constitution also probably believe in the Tooth Fairy and the Easter Bunny." The author's own approach to judging is put forth as being evidentiary: "I did elaborate manipulations of history in order to arrive at what I thought were just results."
Perhaps the most dubious aspect of Neely's thesis is an important aspect of its underpinning. He is plagued by no doubt that the general public admires and applauds the activist judge. "American courts enjoy greater prestige than any other American governmental institution . . . because the average American intuits the functional justification for court intervention in the political process." The two shadowy figures leaning over Neely's shoulder when he wrote that may have been the Tooth Fairy and the Easter Bunny.
Throughout Neely's exegesis there are grains of truth and nuggets of insight, but only grains and only nuggets. Of course it would be grand if all legislators were heroes and all bureaucrats Ralph Nader out of Thurman Arnold. But to turn to political courts as the remedy for the fact that they are not, and may never be, presents risks of which even the author, at the end of this provocative book, seems grudgingly aware. It is in his concluding chapter that Justice Neely concedes, "Although the capacity to intervene in the political process is part of courts' legitimate function, they, like everyone else, can be very, very wrong."