Judging the Judges

The Price of Perfect Justice: The Adverse Consequences of Current Legal Doctrine on The American Courtroom.
by Macklin Fleming.
Basic Books. 196 pp. $10.00.

Ex California semper aliquid novum. This time it is a book about the defects of American justice. What is novel is that Macklin Fleming, once a, trial judge, and now a Justice of the California Court of Appeals, does not make the accusations that we are accustomed to find between hard covers—that the system is harsh, that there is one justice for the rich and another for the poor, that capital punishment is cruel and barbarous and imprisonment no better, and so forth and so on. Not at all. His complaint is that our system of justice, especially criminal justice, works badly, that it does not do what it is supposed to do and does do a great many things which are none of its business, and that the fault is largely that of the judges themselves. And, in his dry but lucid way, with a wealth of convincing and sometimes appalling examples, he frequently makes his point. It is an odd, unfashionable, and disturbing book.

There is undoubtedly a widespread feeling, even among lawyers, that something is rotten in the state of our criminal justice. At least nine serious crimes out of ten go unpunished. Even the most zealous civil libertarians, faithful believers in the dogma that it is better that ninety-nine guilty men go free than that one guilty man be convicted, have lately begun to feel twinges of doubt and heresy. The American Civil Liberties Union, for example, has been astoundingly silent in the debate as to whether there should be a relaxation of the rules that have long made it so difficult to get a conviction in a rape case, notably the rule that an accused cannot be found guilty on the uncorroborated testimony of the victim. If ACLU reasserts its traditional solicitude for persons accused of crime (Nixonites always excepted), it risks grave offense to the women's liberation movement, whose members lean to the view that as few technical barriers as possible should be interposed between rapists and the Zuchthaus.

Despite the doubts and murmurs, and despite the changes in the membership of the Supreme Court, defendants in criminal cases are still getting due process in such quantity that, as Justice Fleming sees it, the incarceration of even the most obviously guilty criminal is a task comparable to landing a barracuda with a trout-rod and a dry-fly. More than half the book is devoted to an exhaustive description of the numerous techniques by which an accused with an astute, well-paid, and/or zealous lawyer can delay or frustrate his prosecution, litigate the same issue (which may have little or nothing to do with his guilt or innocence) in several different courts, state and federal, and, should he actually be convicted, attack the constitutionality of that conviction by endless appeals and petitions for habeas corpus. He can start before trial by seeking to enjoin the prosecution on the ground that its threat chills an asserted constitutional right. He can attack the indictment by claiming that some ethnic or other group to which he claims to belong—people with Spanish surnames, young people, old people, people with low incomes, people with little education, etc., etc., ad infinitum—were inadequately represented on the panel from which the grand jury was drawn. This issue can be litigated, appealed, and reviewed by collateral process in both state and federal courts for months and years. Similar attacks can be made on the composition of the trial jury. Likewise, he can seek to disqualify the trial judge for alleged bias and appeal the judge's refusal to disqualify himself. He can assert that appointed defense counsel is incompetent, before, during, and after the trial. He can demand that he be allowed to represent himself. If the request is denied and he loses his case, he can appeal on that ground; if it is granted, he can appeal on that ground also, arguing that the trial judge should have recognized his unfitness to be his own lawyer. He can move to suppress evidence, even when its truth and relevance are unquestioned, on the ground that it was obtained illegally; Justice Fleming itemizes twenty-six separate state and federal proceedings in which a defendant can challenge the lawfulness of a single search or seizure. Moreover, he can petition for habeas corpus ad libitum, hoping finally to find a federal judge who agrees with him and disagrees with all the other judges, for the doctrine of res judicata—that an issue finally determined by a court cannot be reopened—does not apply to habeas corpus, and a single federal district judge can spring a convict whose arguments have been unanimously rejected by a state's supreme court and other federal judges. If all else fails, the petitioner can argue that the inadequacy of the prison's law library denies him due process or the equal protection of the laws. These, I emphasize, are only a small sampling of Justice Fleming's catalogue (all documented by actual cases) of the devices which make it a labor of Sisyphus to put a criminal in jail and keep him there. One who loses at every step can almost claim that that very fact shows he has been denied equal protection of the law.

Justice Fleming's indignation, though controlled and temperate, probably leads to some exaggeration. Obviously, a sizable number of felons, however small in relation to the whole criminal population, do go to prison and do serve their sentences. But the cost of protracted litigation, of multiple trials and appellate reviews of the same issues, is enormous—and not only in terms of money and energy. Justice Fleming concludes in substance that our cost analysis is defective. In our obsessive desire to eliminate entirely the risk that an innocent man will be punished, we do not count the cost of letting guilty men go free. If a heroin wholesaler is left at large, not because there is any doubt of his guilt, but because the evidence against him was obtained by an unlawful search or wiretap, or there was a breach of the elaborate ritual of due process, what is the cost in life and happiness to innocent people? The same cost analysis should be applied to armed robbers, rapists, terrorists, and every other predator—always assuming that there is no reasonable doubt of his guilt—whose liberty creates great and imminent danger to the innocent people on whom he preys. To exclude sound evidence because it has been unlawfully obtained is to punish the public instead of the police. In the words of Benjamin Nathan Cardozo,

The criminal is to go free because the constable has blundered. . . . The pettiest peace officer would have it in his power, through overzeal or indiscretion, to confer immunity upon an offender for crimes the most flagitious. A room is searched against the law, and the body of a murdered man is found. If the place of discovery may not be proved, the other circumstances may be insufficient to connect the defendant with the crime. The privacy of the home has been invaded, and the murderer goes free.

Even if the constable's invasion of the criminal's rights is not a mere blunder, but deliberate, it is permissible to wonder whether the public would not be better served if both the constable and the criminal were punished.


Justice Fleming's major thesis, embodied in the title of his book, is that the struggle for an unattainable perfection, the constant expansion of the constitutional rights of people accused of crime, has done little to protect the innocent, much to protect the guilty, and more to harm the innocent victims of crime. As Holdsworth long ago pointed out, the Chancery practice of the time of Bleak House (which, at its worst, permitted an issue to be litigated only five times) was based on a noble purpose to achieve perfect justice, regardless of delay or expense. Jarndyce v. Jarndyce, a paradigm of a multitude of real cases, showed the result of that noble purpose.

When the Supreme Court, some thirty years ago, expanded the process of collateral review, and the number of federal constitutional rights, there were undoubtedly evils to be cured. There was reason to doubt the fairness of many state trials and also the adequacy of state appellate review. But, as often happens in the United States, we seem to have overdone the cure—in effect reasoning that if one cc. of cortisone does the patient good, 10 cc. will do him ten times as much good. It is not easy, in fact, to find a case in which it seems probable, or even reasonably possible, that an innocent man was punished. Henry Friendly, one of the ablest among federal judges, would limit collateral review of convictions to cases in which there is real doubt of the petitioner's guilt. He cited as an example of such a case Miller v. Pate, in which the Supreme Court in 1967 freed a man who had eleven years earlier been convicted of the rape and murder of an eight-year-old girl. Alas, Justice Fleming's exhaustive examination of the evidence in that case (including some vital evidence that the Supreme Court ignored) leaves the reader with small doubt that the original verdict of guilty was just. But if even Judge Friendly did not find a clear instance of innocence vindicated by collateral review, any layman can accumulate examples of unpunished guilt until he wearies of the task.


The monstrous hypertrophy of criminal procedure has, Justice Fleming argues with considerable persuasiveness, been aggravated by the natural inclination of a great many judges and justices to see themselves as commissioned by the Constitution, or possibly the Deity, to enforce what is right in their eyes, to judge the United States as Samuel judged Israel. The Constitution, as Charles Evans Hughes long ago observed, is what the judges say it is; if they cannot find anything in it which clearly supports their own notions of equity, they can and often do talk about shock to the judicial conscience, and “penumbras” and “emanations” of the actual provisions of the Constitution, or even, God preserve us, Natural Law. The Warren Court did not, of course, invent such techniques. The earliest example seems to be Dred Scott's case, in which Chief Justice Taney held that the limitations on slavery in the Missouri Compromise deprived slaveowners of their liberty and property without due process of law. Broad construction and judicial activism were employed in the first three decades of the present century to strike down various statutes attempting to improve the conditions of labor. In those days the Court was, of course, as heartily detested by liberals as the Warren Court was by the law-and-order crowd. But there was not much the progressives could do about it, except hope that the conservative or reactionary Justices would die and be replaced by jurists of their own persuasion.

I question Justice Fleming's conclusion that “the Supreme Court [has] absolute power in oligarchical corporate form, power the Court exercises without any effective restraint.” There are times, exemplified during the Civil War and Reconstruction, when the Court holds its hand because it has reason to believe that the President and Congress would not heed its decision. But it is true that in the vast majority of cases the issue is not great enough to justify a constitutional crisis, and the Court is obeyed. (Justice Fleming complains, with some reason, that the judges often invoke the Constitution in matters of vast unimportance, such as regulation by school authorities of the students' dress and hairiness.)

The textbook examples of the Supreme Court as the ultimate Gesetzgeber are, of course, Roe v. Wade and Doe v. Bolton, the abortion decisions of 1973. There the Court, seeking and finding light on the inner meaning of the Fourteenth Amendment from such sources as the Hippocratic Oath, the writings of Plato, Aristotle, and the Stoics and Pythagoreans, and placing special weight on the views of the eminent Ephesian gynecologist, Soranos (with whom every state legislator is no doubt familiar), solemnly held that the Constitution confers upon women an unqualified right to terminate pregnancy during the first three months, a qualified right to do so during the next three months, and no right to an abortion after the sixth, or perhaps the seventh, month. This may or may not be good policy, but it is not what I was taught to regard as constitutional law.


Many of the Justices, including some of the greatest, have denounced the Court's tendency to see itself as a super-legislature and urged self-restraint with great eloquence and, no doubt, sincerity. But those very Justices have themselves yielded to the temptation when their own convictions were strong enough. The renunciation of power, when it is there for the taking, is usually beyond the strength of frail political humanity. (Justice Blackmun wrote the opinions of the Court in the abortion cases, and two of Mr. Nixon's other appointees, also professed believers in strict construction and judicial self-denial, concurred.) Congress could drastically curtail the jurisdiction of the Court—if the Court did not hold the curtailment unconstitutional. But, as Justice Fleming recognizes, such radical surgery would be worse than the cancer. His own suggestion is a constitutional amendment limiting the tenure of Justices of the Supreme Court to sixteen years. There is much to be said for it. It would have cost us eighteen years of John Marshall and fourteen years of Oliver Wendell Holmes, Jr.; on the other hand, it would have spared us at least nineteen years of William O. Douglas. There may well be better solutions. It may be that the present situation is more easily to be borne than any possible remedy. At any rate, The Price of Perfect Justice is an intelligent, stimulating description and analysis of a serious political problem.

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