H. L. Mencken’s recipe for dealing with activist judges

Both sides of the political spectrum in the USA have from time to time expressed “reservations” (euphemism!) at the decisions of judges that affect causes, laws and activities which they support.  Ninety-five years ago, H. L. Mencken had a suggestion on how to deal with them.

To punish a judge taken in judicial crim. con. by fining him or sending him to jail is a bit too facile and obvious. What is needed is a system (a) that does not depend for its execution upon the good-will of fellow jobholders, and (b) that provides swift, certain and unpedantic punishments, each fitted neatly to its crime.

I announce without further ado that such a system, after due prayer, I have devised. It is simple, it is unhackneyed, and I believe that it would work. It is divided into two halves. The first half takes the detection and punishment of the crimes of jobholders away from courts of impeachment, congressional smelling committees, and all the other existing agencies—i.e., away from other jobholders—and vests it in the whole body of free citizens, male and female. The second half provides that any member of that body, having looked into the acts of a jobholder and found him delinquent, may punish him instantly and on the spot, and in any manner that seems appropriate and convenient—and that, in case this punishment involves physical damage to the jobholder, the ensuing inquiry by a grand jury or coroner shall confine itself strictly to the question of whether the jobholder deserved what he got.

. . .

Say a citizen today becomes convinced that a certain judge is a jackass—that his legal learning is defective, his sense of justice atrophied, and his conduct of cases before him tyrannical and against decency. As things stand, it is impossible to do anything about it … if he is a Federal judge he never comes up for re-election at all, for once he has been appointed by the President of the United States, on the advice of his more influential clients and with the consent of their agents in the Senate, he is safe until he is so far gone in senility that he has to be propped up on the bench with pillows.

But now imagine any citizen free to approach him in open court and pull his nose. Or even, in aggravated cases, to cut off his ears, throw him out of the window, or knock him in the head with an axe. How vastly more attentive he would be to his duties! How diligently he would apply himself to the study of the law! How careful he would be about the rights of litigants before him! How polite and suave he would become! For judges, like all the rest of us, are vain fellows: they do not enjoy having their noses pulled. The ignominy resident in the operation would not be abated by the subsequent trial of the puller, even if he should be convicted and jailed. The fact would still be brilliantly remembered that at least one citizen had deemed the judge sufficiently a malefactor to punish him publicly, and to risk going to jail for it.

A dozen such episodes, and the career of any judge would be ruined and his heart broken, even though the jails bulged with his critics. He could not maintain his air of aloof dignity on the bench; even his catchpolls would snicker at him behind their hands, especially if he showed a cauliflower ear, a black eye or a scar over his bald head. Moreover, soon or late some citizen who had at him would be acquitted by a petit jury, and then, obviously, he would have to retire. It might be provided by law, indeed, that he should be compelled to retire in that case—that an acquittal would automatically vacate the office of the offending jobholder.

There’s more at the link.

Methinks Mr. Mencken’s suggestions should be more widely discussed.  Perhaps he had a point!

Peter