Email this review


While most arguments in favor of an activist court are couched in the mild terms of judicial review, Neely's is different. The grandson of a West Virginia US Senator, Neely, as a state legislator, had his own eye on the Senate; but when the incumbent surprised him by running again, Neely admits to dropping his campaign and running for the West Virginia Supreme Court of Appeals instead--that was a good place to hang out, he figured, until the next Senate race. He found out, though, that he liked being a judge; became satisfied that he was good at it; and wound up chief justice (at 38). To go along with an unorthodox past, Neely has an unorthodox theory: namely, that due to the structural limitations of the other branches, the courts are the only democratic institutions in government. Legislatures, he brashly notes, are best at doing nothing; and legislators often exploit their well-developed inertia to keep legislation from ever reaching the floor for a vote, stifling social progress in favor of special interests and the promise of reelection they hold out. Executives and the bureaucracies they operate through are prone to corruption when they're not busy rolling over the people with administrative fiats. Courts, he feels, are the least corruptible branch; and he has a typically Neelian way of putting his point: ""In elected politics, the legislature and executive take idealistic, energetic, ambitious young men and turn them into whores in five years; the judiciary takes good, old, tired, experienced whores and turns them into virgins in five years."" His inclusion of the judiciary as a political institution is important; and he argues that judicial action in political affairs is justified if it meets certain criteria--including a disparity between social ideals and actuality, exclusion of the affected groups from the political process, impotence (or inaction) on the part of the other institutions of government, and the existence of a social consensus. Using two examples drawn from court experience, Neely shows that criminal law reform meets these requirements, while school financing does not. However, his argument ultimately rests, not on the relative disinterestedness of the courts, but on their ability to act if a consensus exists in the society; and therein arises a problem. Sometimes Neely refers to Gallup polls and sometimes to the ""feel"" judges have of the public mood; in either case, the public's feelings are removed from the ballot-box--and even if one accepts Neely's pessimism about the legitimacy of voting, he can't be let off for ignoring the ramifications of opinion-polling as a tool of government. Still and all, Neely is a judicial thinker in the common-law mold, and though he overdoes the anti-intellectual, plain-spoken bit at times, his common sense is fresh.

Pub Date: Sept. 1st, 1981
ISBN: 0300029802
Publisher: Yale Univ. Press