Had the Declaration of Independence been called by our founding fathers the “Declaration of Freedom for Strippers, Keg Parties, and Weed” lots of frat boys might have paid attention to it, but the substantive arguments in the document — arguments worth hearing, repeating, and understanding – would have been ignored by the masses. In the same way, when Regnery Books titles Mark R. Levin’s new book “Men in Black: How the Supreme Court is Destroying America,” the masses will ignore Mr. Levin’s very sound arguments assuming instead that he has written a hyperbolic tome catering only to rightwingers. That’s unfortunate because Mr. Levin treats his subject with thoughtful seriousness.
Levin writes, “I wrote Men in Black to address [the overreach of the courts] and because I believe it’s time for a serious national debate about the role of the judiciary in modern America.” Indeed, Levin carefully lays out what is wrong with the Court, from the unwillingness of the Congress to remove judges of ill repute to the court’s chronic habit of interjecting itself into every debate, whether or not the Constitution permits the interjection. Levin looks at the Supreme Court’s willingness to abrogate the First Amendment through upholding the Bipartisan Campaign Finance Reform Act, give “alien enemy combatants . . . access to our courts,” and substitute its “policy objectives for that of a legislature or Congress” on such matters as immigration. Men in Black reads like a Hornbook on Supreme Court Juris[im]prudence, which I think would have been a better title.
Mark Levin has done an impressive act of research and has shown, whether you disagree with him or not, that he is a true legal scholar. His work, with copious quotes, citations, endnotes, and appendices clearly makes the case that the Supreme Court has overstepped its bounds. Unfortunately, also being a talk show host, Levin sometimes crosses the line separating passionate discourse and emotional hyperbole. For example, while he and I may fully agree on the principles of his book and the cases in which the Court has overstepped its bounds, I would not set up a blanket characterization that “[j]udicial activists are nothing short of radicals in robes – contemptuous of the rule of law, subverting the Constitution at will, and using their public trust to impose their policy preferences on society.” Yes, they do “impose their policy preferences on society,” but I would not go so far as to say they are “radicals in robes” “contemptuous of the rule of law.” Sadly, I think most activist judges are simply do gooders who would rather “feel” the constitution than “think” the constitution — hardly radicals, but certainly “subverting the Constitution.”
Beyond some of the emotional hyperbole and a title that will turn some who should read the book off (Glenn Reynolds said of it, ” I haven’t read Levin’s book, whose title seems a bit hyperbolic, but I’m guessing that the market for conservative books attacking liberal courts will head downward soon, as Bush appoints a lot more judges.”), I have only one real regret about the book, and it really is not Levin’s fault. Levin spends twelve chapters making the case that the Court needs to be reined in and only one chapter on how to rein in the Court. It may be that there is no good solution, but Levin does not adequately make the case for any solution. Perhaps he feels it is just his duty to sound the alarm and let someone else worry about a detailed solution. I certainly cannot fault him for that. And, I do think Congress lacks the will to implement any long lasting solution.
Mark Levin undertook a worthy effort and his love of the subject comes out. For those who want a fact-based weapon to use in the coming war over court nominations, this is it. Levin did a superb job breaking down cases in language mere mortals can understand and explaining why what happened should not have happened under the Constitution. Too bad the hyperbole of the title will turn off a lot of people who might otherwise be interested in learning why conservatives are so anxious for conservative judges on the court. There is room for people to be persuaded, the facts in the book are enough to persuade many, but some will have to hold their nose to make it to Chapter 1. Rush Limbaugh fans like me, however, can delight in Rush’ introduction and lawyers like me can delight in the ability of one lawyer making the complex easy to understand.