The View From 1776
Sunday, September 25, 2005
Judicial Activism: Part VIII (The Birth of an Issue)
Judicial activism since the 1950s has been driven by liberalism’s presumption that the mind of man controls everything, therefore any perceived imperfection in social conditions must, and can, be righted. Katrina’s destruction offers us a glimpse of a liberal social-justice issue aborning.
Close upon the heels of Hurricane Katrina, we can see a devastating legal storm gathering to exploit the free-for-all created by judicial activism under liberal-socialism’s absence of moral and legal standards.
In a September 24, 2005, opinion article in the Wall Street Journal, Walter Olson writes about the process of creating an issue for judicial activism:
“Sometimes it takes a good lawyer to get an insurance company to pay up on the promises it made. But if you want insurers to pay billions on promises they never made—risks they were at pains to avoid underwriting, never collected premiums for, and never set aside reserves against—then a pair of very special lawyers, Jim Hood and Dickie Scruggs, are at your service.
“In case you’re arriving late, insurance pros worldwide stood transfixed last week at the news that Mr. Hood, the elected attorney general of Mississippi, and his ally Mr. Scruggs, the Pascagoula wheeler-dealer known for his role in the $246 billion tobacco litigation, were suing to invalidate—as “unconscionable” and contrary to public policy—the standard flood exclusion in every Magnolia State homeowner’s contract. Assuming ordinary readings of policy language, the early estimates have insurers on the hook for a record $40-$60 billion in Katrina payouts. Knock out the flood exclusions and that exposure will increase by many billions more—scores of billions if the principle gets applied in Louisiana….
“There are some genuine, knotty issues that will arise in resolving Katrina coverage. Ambiguous policy language, unsettled issues of state law, situations in which a structure was damaged first by wind and then by floodwater—all will fuel litigation by policyholders, some of it meritorious. But that’s quite a different question from whether clear and long-standing contract language should be tossed in the wastebin.
“The flood exclusions, Mr. Hood asserts, were hidden “in the fine print” of coastal residents’ policies. If so, it was some of the most publicized fine print in history. “Homeowner’s insurance doesn’t cover flood damage”—blares the warning on one of the federal government’s own consumer-affairs Web sites. In fact, the well-known exclusion dates back decades and has been generally respected by courts.
“Unconscionable”? Contrary to “public policy”? The exclusion prevails in all 50 states, including those states—Mississippi is one—where regulators must okay the offering of new standard policies. Mississippi’s insurance authorities, like their counterparts elsewhere, had green-lighted the flood exclusion, amid little controversy.”
How could this piracy possibly survive the scrutiny of Federal or state court judges? The answer, of course, is that since 1937, and particularly since the 1950s, liberal-socialist doctrines have come to dominate the bench. And that doctrine both denies the idea of fixed principles of law or moral conduct, and follows the precept that the judge’s task is to decide a legal case in accordance with what he believes the outcome OUGHT to be.
What possible justification can there be for this legal anarchy?
Liberal-socialism, the American sect of the world religion of socialism, is grounded in the atheistic faith that belief in a transcendent, all-powerful Creator God is an ignorant superstition, a sort of fairy tale concocted to soothe the uneducated masses. Religion is, in liberal-socialist doctrine, not only ignorance, but a force of social oppression that must be destroyed. Karl Marx called religion the opium of the masses, devised by the propertied ruling classes to keep the workers subjugated in ignorance.
It follows, in liberal-socialist logic, that, there being no God, man is in charge of the universe. But, because past religious faith has made most people ignorant, it naturally also follows that only intellectuals, who understand all of this, are able to point the way to society’s earthly salvation.
Thus a liberal-socialist society is to be ruled by intellectuals, such as the New York Times’s editorial board and anti-American university professors. Needless to say, these intellectuals are the only ones with sufficient understanding to select appointees to the Federal judiciary, and, of course, those appointees must be atheistic socialists.
Proposition two in the chain of liberal-socialist logic is that the rational mind of man is responsible for everything we see around us and therefore empowered to realign social conditions that are at variance with the intellectuals’ current ideas of social justice.
Proposition three is that the only things that matter in realigning social conditions are the materialistic factors such as working conditions, living conditions, and income. From this comes proposition four that social ills, conditions at variance with current ideas of social justice, are caused by unequal distribution of these materialistic factors, most notably income, which affect working and living conditions.
Proposition five is the Marxian and Darwinian doctrine that there is no such thing as human nature. All things, most especially standards of social belief and behavior, are continually evolving as the external, materialistic conditions of the economy and political regulations change. As Darwin’s champion Thomas Huxley pictured it, there is no right or wrong, no such thing as sin; there is only the struggle for survival, another term for Darwin’s natural selection as the creator of species.
What has this to do with judicial activism?
First, and most consequentially, it means that there are no independent standards of law against which to measure the constitutionality of laws or human behavior. As Justice Oliver Wendell Holmes, Jr., notoriously stated it, the law is only the opinion of a judge in a given case. And in the world of liberal socialism, that means the judge’s opinion of how thing ought to be, regardless of what a statute says or what the law, for centuries, may have been.
It will be observed that there is an element of circularity in this liberal-socialist scheme, leading to instability, even chaos. The judge himself is at the mercy of changing external material conditions, as he has no timeless principles of religious morality to circumscribe his opinions. He is a rudderless ship driven by changing public opinion, whatever may be the latest social-justice issue to capture the enthusiasm of Hollywood, TV, and the print media. Yesterday’s established principle of law may be overturned without a backward glance.
When no one can be sure of what the law is respecting a given issue, a measure of economic and social paralysis results. The largest corporations, with teams of the best available lawyers, and assuredly poor individuals, are left to make at best educated guesses about whether policies or conduct will survive the scrutiny of Federal and state judges.
Corporations forego new projects that might have created thousands of new jobs and produced innovative and cheaper products for people, because their lawyers fear potentially ruinous law suits. Doctors order scores of ferociously expensive tests for patients, even when those tests are unneeded in their best medical judgment, because any pretext can be exploited by attorneys for malpractice awards that will bankrupt the physicians.
The one sure effect of liberal-socialist doctrine applied to the judiciary is diversion of prodigious amounts of money and armies of otherwise useful talent into the ranks of lawyers and accountants. To this extent, everyone is poorer, both in spirit and in the pocketbook.