Table Of ContentJUDICIAL POWER AND
AMERICAN CHARACTER
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JUDICIAL POWER AND
AMERICAN CHARACTER
Censoring Ourselves
in an Anxious Age
Robert F. Nagel
New York Oxford
OXFORD UNIVERSITY PRESS
Oxford University Press
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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
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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:This original work is an unusual effort to relate modern constitutional politics to the moral character of American culture. Writing in non-technical language, Nagel demonstrates how judicial decisions embody wider social tendencies toward moral evasiveness, privatization, and opportunism. He shows
