3
Is a judge bound to lend himself to such gross and dishonest attacks upon the common rights of the citizen? I am no lawyer, but I presume to doubt it. There were judges in 1918 who did not think themselves obliged to sacrifice the Bill of Rights to the Espionage Act, and who resolutely refused to do so, and yet, so far as I know, nothing happened to them; at least one of them, to my knowledge, has been since promoted to a circuit. Why should any judge enforce the injunction clause of the Volstead Act? Its enforcement is surely not an automatic act; it involves deliberation and decision by the judge; he may refuse his injunction without offering any explanation to anyone. What would follow if he arose one day in his high pulpit, and announced simply that his court was purged of all such oblique and dishonest enactments henceforth—that he had resolved to refuse to lend himself to the schemes of blackmailers with badges, or to harass and punish free citizens in violation of their fundamental constitutional rights and their plain dignity as human beings, or, in brief, to engage in any other enterprise as a judge that he would shrink from engaging in as a good citizen and a man of honor? Would the result be impeachment? I should like to meet a Congressman insane enough to move the impeachment of such a judge! Would it be a storm of public indignation?... Or would it be a vociferous yell of delight?
It seems to me, indeed, that the first judge who rises to such a rebellion will be the first judge ever to become a popular hero in the Republic—that he will be elevated to the Supreme Court by a sort of acclamation, even if it is necessary to get rid of one of the sitting justices by setting fire to his gown. But even imagining him so elevated, the remaining eight justices will still function, and all of us know what they think of the Bill of Rights. Wouldn’t such a rebel judge succumb to the system of which he was a discreet particle? Couldn’t the other eight judges nullify and make a mock of his heroic defiance? Could they, indeed? Then how? If a judge, high or low, actually called in justice to rescue a citizen from the law, what precisely could the Supreme Court do about it? I know of no appeal from the District Attorney in criminal cases, once the accused has been put in jeopardy; I know only of impeachment for judges who forget the lines of the solemn farce to which they are sworn. But try to imagine the impeachment of a judge charged with punching a hole in the Volstead Act, and letting in some common justice and common decency!
So far, no such rambunctious and unprecedented judge has been heard of,—none, that is, has objected to the injunction clause in toto and head on—nor do I specifically predict his advent. He may come, but probably he won’t. The law is a curse to all of us, but it is a curse of special virulence to lawyers. It becomes for them a sort of discreditable vice, a stealthy and degrading superstition. It robs them of all balance, of all capacity for clear thought, of all imagination. Judges tend to show this decay of the faculties in an exaggerated form; they become mere automata, bound by arbitrary rules, precedents, the accumulated imbecilities of generations of bad logic; to their primary lack of sense as lawyers they add the bombastic manner of bureaucrats. It is thus too much to hope for a judge showing any originality or courage; one Holmes in an era of Hardings and Coolidges is probably more than a fair allotment. But while the judges of the District Courts go on driving wild teams of jackasses through the Bill of Rights, and the rev. seniors of the Supreme Court give their approval to the business in solemn form, sometimes but not always with Holmes, J., and Brandeis, J., dissenting—while all this is going on, there are black clouds rolling up from the hinterland, where the Constitution is still taught in the schools and even Methodists are bred to reverence Patrick Henry. The files of Congress already show the way the wind is blowing—constitutional amendments to drag down and denaturize the Supreme Court, simple acts to the same end, other acts providing for the election of Federal judges, yet others even more revolutionary. I know of no such proposal that has any apparent merit. Even the best of them, hamstringing the courts, would only augment the power of a Congress that is ten times worse. But so long as judges pursue fatuously the evil business of converting every citizen into a subject, demagogues will come forward with their dubious remedies, and, soon or late, unless the bench pulls up, some of these demagogues will get themselves heard.