Unrestrained: Judicial Excess and the Mind of the American Lawyer »

Robert Nagel's innovative volume attempts to explain why, despite almost four decades of conservative and moderate appointments, the Supreme Court continues to intervene aggressively in a wide array of social and political issues. The explanation lies primarily in the psychological effects of the way that lawyers think about law and judging. The instincts ingrained by the experiences common to legal education and the successful practice of law also work to encourage the reckless use of power. Nagel argues that the problem with the modern judicial role is cultural and political. He demonstrates that judges, especially Supreme Court justices, have degraded our political discourse, intensified social conflict, and drained moral confidence.
By examining modern Supreme Court confirmation hearings along with certain classic legal writings, Nagel shows how modern lawyers have a broad consensus on how to interpret the Constitution and, more generally, how to think about law. One major component of this mindset is to combine realism with legalism in ways that naturally tend to expand the judiciary's imperial role. Realism counsels that decisions are inevitably partly personal and therefore cannot be conclusively justified while legalism imparts the sense that the judge's interpretation is the best one possible. This combination of the personal and political, along with other aspects of modem legal thinking and training, means that judges are not only unconstrained by professional norms but actually are impelled by them to use power expansively. This issue is important to every person living in the U.S., as the Supreme Court's decisions concern everyone in the nation. It has the potential to be read by lawmakers, lawyers, students of law and political science, and anyone interested in Constitutional law. The thesis is unique and the execution is precise.

1 A Ship that Will Not Turn 1

2 The Rise of Judicial Power 21

3 The Consequences of Excess 37

4 Thinking like a Lawyer 53

5 Realistic Legalism 65

6 High Principle and Self-Restraint 77

7 The Mantra of Legal Authority 89

8 Political Judgments 103

9 Training, Experience, and Instinct 121

App Cases Cited 135

References 137

Index 143