Judicial Power and American Character: Censoring Ourselves in an Anxious Age PDF
Preview Judicial Power and American Character: Censoring Ourselves in an Anxious Age
JUDICIAL POWER AND AMERICAN CHARACTER This page intentionally left blank JUDICIAL POWER AND AMERICAN CHARACTER Censoring Ourselves in an Anxious Age Robert F. Nagel New York Oxford OXFORD UNIVERSITY PRESS Oxford University Press Oxford New York Athens Auckland Bangkok Bombay Calcutta Cape Town Dar cs Salaam Delhi Florence Hong Kong Istanbul Karachi Kuala Lumpur Madras Madrid Melbourne Mexico City Nairobi Paris Singapore Taipei Tokyo Toronto and associated companies in Berlin Ibadan Copyright (c) 1994 by Oxford University Press, Inc. First published in 1994 by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016 First issued as an Oxford University Press paperback, 1996 Oxford is a registered trademark of Oxford University Press All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press. Library of Congress Cataloging-in-Publication Data Nagel, Robert F. Judicial power and American character : censoring ourselves in an anxious age / Robert F. Nagel. p. cm. Includes bibliographical references and index. ISBN 0-19-508901-4; ISBN 0-19-510662-8 (pbk.) 1. Judicial power—United States. 2. United States— Constitutional law—Moral and ethical aspects. I. Title. KF5I30.N34 1994 347.73-12 — dc20 [347.30712] 93-41891 2 4 6 8 9 7 5 31 Printed in the United States of America on acid-free paper To William G. and Ethel M. Nagel This page intentionally left blank ACKNOWLEDGMENTS The idea for this book began to take form when my first book, Constitu- tional Cultures, was still a draft manuscript. At that time several readers pointed out that the "mentality" of judicial review that I was attempting to describe might be the mentality not only of the legal profession but also, at least in some ways, of ordinary citizens. I could not satisfactorily assimilate this possibility into the writing that was already underway, but the thought was planted. Eventually some other commentators energetically attacked that book. Although I appreciated the interest and insights of these critics, I was surprised at the extent to which a few seemed to view themselves as engaged in a kind of warfare. Reflecting on this vehemence also helped me to know what I wanted to say next. A number of individuals have generously and thoughtfully com- mented on sections of Judicial Power and American Character. These include Paul Campos, Mark Loewenstein, Alfred McDonnell, Christopher Mueller, Gene Nichol, James Scarboro, and Pierre Schlag. Special thanks are due to those who read the entire manuscript: Akhil Amar, Lee Bollinger, Jack Nagel, Pru Nagel, Dale Oesterle, Michael Perry, David Smith, and Steven Smith. Different segments of this book were presented at the University of Colorado Law School and New York University Law School, and twice at Northwestern University Law School. I am grateful to the participants in those events, especially to Lea Brilmayer who com- mented insightfully and skeptically at two of them. My thinking also ben- efited from conversations with Terry Eastland and William F. Nagel. Katherine Gerland contributed useful research assistance in the final stages. The University of Colorado provided me with a research leave that was essential to this work. Just as important, the secretarial staff at the law school has been highly professional and patient. viii Acknowledgments Early versions of chapters and parts of chapters were published as follows: 63 University of Colorado Law Review 945 (1992) (Chapter 2); 57 University of Chicago Law Review 633 (1990) (Chapters 3, 9); 6 Constitu- tional Commentary 289 (1989) (Chapters 3, 9); 84Northwestern Law Review 858 (1990) (Chapter 3); 61 University of Colorado Law Review 685 (1990) (Chapters 4, 9); 61 Tulane Law Review 1027 (1987) (Chapter 4); 56 Law and Contemporary Problems 11 (1993) (Chapters 4, 5); Public Values in Constitutional Law (Gottlieb, ed., University of Michigan Press, 1993) (Chapter 6); 88 Northwestern Law Review 193 (1993) (Chapter 8); and 25 Trial 72 (1989) (Chapter 9). Material in Chapter 9 is reprinted with per- mission of Trial (December 1989), copyright the Association of Trial Lawyers of America. Much of Chapter 6 is copyright the University of Michigan Press and is reprinted with its permission. Chapter 3 and part of Chapter 9 are © 1990 the University of Chicago and are used here with permission. Finally, part of Chapter 3 is copyright Northwestern Uni- versity and appears here with its permission. 1 should add that I tried out some specific phrasing in the New Republic (October 7,1991) and The Public Interest Law Review (1993). Boulder, Colorado R. F. N. February 1994 CONTENTS 1. Introduction: The Court as Cultural Barometer, 3 2. Watching Ourselves: The Thomas Hearings and National Character, 9 Inequality as Equality, 10 Offensiveness as Virtue, 14 Careerism and Sexual Equality, 16 Careerism and Responsibility, 20 Moralism and Opportunism, 24 3. Shaping Law: Elitism and Democracy in the Bork Hearings, 27 Bork against the Mainstream, 28 Bork as the Mainstream, 31 Meeting the Enemy, 39 4. Marching on Constitution Avenue: Public Protest and the Court, 45 Judges as Politicians, 4 7 Marching and Advocacy, 51 Legalism, Realism, and Edwin Meese's Heresy, 56 5. Speaking before All Others: Interpretation as the Suppression of Disagreement, 61 The Rule of Law, 64 Legal Traditions and Constitutional Rights, 66 Political Resistance and the Expansion of Rights, 71
Description:The list of books you might like
