Our ill legal ways
Are we a nation of too much litigation and an overpowerful Supreme Court?
February 16, 2003

By Trevor Rosson, Special to the American-Statesman

Suing McDonalds was supposed to be a legal bonanza for trial lawyers. When Samuel Hirsch filed a lawsuit on behalf of two Bronx teenagers charging the king of fast food with misleading the public, the prospect of pocketing billions in legal fees was doubtless hiding in Hirsch's mind. But then Judge Robert Sweet dismissed the lawsuit, writing in a 64-page opinion that "Nobody is forced to eat at McDonalds . . . (or to) supersize their meals."

The lawsuit didn't exactly help the reputation of trial lawyers. Maligned in the public eye for filing frivolous lawsuits and then winning billions in damages, trial lawyers have a serious public-relations problem. With the publication of Walter Olson's "The Rule of Lawyers," the reputation of trial lawyers may hit a new low. Following the themes of Catherine Crier's "The Case Against Lawyers" and Philip Howard's "The Lost Art of Drawing the Line," Olson paints a scandalous picture of trial lawyers -- and a slanted one, in which evil trial lawyers bankrupt trusting corporations in your cliched bad-guy-versus-good-guy drama.

Which is not to say that the story in "Rule" is wrong. The money trial lawyers pocket from lawsuits is legendary. The legal fees from the tobacco litigation in Texas, Florida and Mississippi, for example, totaled roughly $8.1 billion, though the amount paid was eventually reduced. Politically, trial lawyers are powerful lobbyists within the Democratic and Republican parties and are key players in fund-raising campaigns. Then there are the trial lawyers themselves, a flamboyant club of superstars with fortunes ranging from the millions to the hundred of millions.

With their wealth and power, Olson argues, trial lawyers function as a de facto "fourth branch" of government. The idea of citizens participating in a democracy, Olson says, is today eclipsed by trial lawyers litigating as legislators. But defending the ideal of democracy is a bit disingenuous when moneyed interests arguably have a monopoly on democracy. Perhaps as troubling, Olson's harsh words about the jury system, traditionally defended as a bulwark of democracy, suggests that he's not as interested in democracy as he says.

"Rule" will undoubtedly energize advocates of tort reform. But as an example for public debate, the book's arguments aren't that balanced. The argument that trial lawyers are the culprits of today's troubling legal system will seem superficial for legal scholars. And Olson says scarcely a word about the questionable legal tactics of corporations -- not a surprise owing to Olson's conservative politics and connection to the conservative Manhattan Institute think tank. Nor is Olson honest about the social benefits of trial lawyers: When the government is reluctant to burden business with regulatory legislation, trial lawyers serve as a check on the harmful practices of business.

Still, the criticisms of trial lawyers are trivial compared with criticisms of the Supreme Court. Since America's founding, the legitimacy of the Supreme Court in a democracy has been the subject of scholarly debate, reaching a high point with Chief Justice Earl Warren's reign from 1953 to 1969. The Warren Court's controversial rulings on civil rights and criminal law produced a flood of articles and books debating the relationship between the court and democracy. Was the court subverting democracy by legislating from the bench? For conservatives Robert Bork, the failed Reagan Supreme Court nominee, and Lino Graglia, a law professor at the University of Texas and nationally recognized commentator, the answer was an unqualified yes.
Defending the court against critics such as Bork and Graglia, Mark Kozlowski writes in "The Myth of the Imperial Judiciary" that conservatives have unrealistic ideas about judicial power that have become what Kozlowski calls the "imperial judiciary thesis." Followers of the thesis, from pundit George Will to Reagan Attorney General Edwin Meese, say that the court is an elite of Platonic guardians isolated from the values of democracy, Kozlowski says.

But there's a schizophrenic quality in the followers of the thesis, a "paranoid style" in the words of historian Richard Hofstadter. For example, conservative legal scholars have invoked the nightmare of Hitler and the Third Reich as a warning against the dangers of an imperial judiciary.

The idea that liberal justices frequently legislate from the bench is a key ingredient of the thesis. Following the Supreme Court's ruling in Bush v. Gore, however, the rhetoric of liberal judicial activism was faced with the fact that conservative justices can be activists as well. Kozlowski touches on the problem of Bush v. Gore for conservatives, but he goes much further in questioning the imperial judiciary thesis.

Kozlowski argues that the founders contemplated a robust, independent judiciary as a check on the dangers of the legislature restricting the rights of minorities. Alexander Hamilton's Federalist No. 78 provided a forceful justification for an independent judiciary: "Limitations of this kind (on the legislative power)," he wrote, "can be preserved in practice no other way than through the medium of courts of justice."

But what about interpreting the Constitution? Is the Supreme Court bound to a narrow interpretation of the Constitution, as followers of the imperial judiciary thesis argue? Legal scholars have devoted forests of paper to the question without agreeing on an answer. Kozlowski contends that historically and pragmatically, an interpretation of the Constitution built on original "truths" from the founders is questionable.

With chapters on the judiciary and rights, and the judiciary's relationship to politics, "The Myth of the Imperial Judiciary" makes a formidable argument that conservatives indeed have an unrealistic conception of the Supreme Court. The imperial judiciary thesis, Kozlowski suggests, is more rhetoric than reality.

Trevor Rosson is a law student at the University of Texas.

©2003 Austin American-Statesman