Conservatives have long argued that Democratic trial lawyers are to blame for out-of-control litigation. In his new book, See You in Court: How the Right Made America a Lawsuit Nation, Chicago lawyer Thomas Geoghegan volleys back that, on the contrary, it's Republican deregulation that has led to the spike in lawsuits. For instance, in the past much employment was covered by union contracts. If you were fired and felt wronged, you could go to a neutral professional arbitrator who'd decide—cheaply, quickly, and with relatively little fuss—if the termination was fair. Now, however, a wronged employee has no recourse but to sue under tort law —which means he or she has to prove that the employer is systematically racist, sexist, or evil in some other categorical way. The resulting court cases are expensive and endless and leave just about everybody (except the lawyers) furious.
Geoghegan—author of the memoir Which Side Are You On? Trying to Be for Labor When It's Flat on Its Back—is a sharp thinker, and his aw-shucks humility, low cunning, and knack for inspirational jeremiads make one suspect he is a very good lawyer. But in that lawyerly tradition, he often seems more interested in scoring points than in fairness. His knee-jerk dismissal of the opposition can be grating: at one point he casually refers to the red-blue divide as "North versus South, or Slave versus Free."
The first part of the book is, in fact, an extended partisan rhetorical coup, in which Geoghegan presents liberals as the defenders of traditional American legal values and conservatives as dangerous Jacobins whose legal theorists are motivated by a lust for destruction: "There is nothing to moor or stabilize them except to shock us, the liberals. They will even defend torture if they think it will nettle us." And just as the right argues that leftist relativism has resulted in an anarchic culture, Geoghegan responds that the right's embrace of legal deregulation has led to "new and more irrational forms of litigation." As justice has become arbitrary, Geoghegan maintains, people have lost faith in their society: they don't vote, don't read newspapers, and have generally stopped being good citizens.
Geoghegan's playing gotcha, which is good fun, especially if (or perhaps only if) you're a lefty yourself. But it's more convincing as partisan snark than as argument. See You in Court makes a good case that deregulation has damaged the justice system in many ways, but portraying conservative jurists as rabid revolutionaries looks a lot like special pleading. The book's efforts to link legal disillusionment with civic estrangement seem like even more of a stretch. Yes, as Geoghegan argues, newspaper circulation is down—but doesn't that have more to do with the rise of the Internet than with the disintegration of civil society? And might not the drop in voting be linked to a weakening of the party system and the rise in polling? Geoghegan doesn't address these questions, nor does he provide statistics to support his own view. He doesn't even really provide anecdotes. We're supposed to accept that he's right because his ideas sound vaguely plausible and because he says so.
But even if Geoghegan's efforts to link the courts and the political culture aren't entirely successful, they do give him an excuse to devote the second half of his book to a nuts-and-bolts analysis of the American political system and its failings. Geoghegan's central point here is that American government is, among modern democracies, uniquely unrepresentational. Unlike many nations in Europe and Asia, the U.S. operates under a 225-year-old-plus constitution, which, Geoghegan notes, "smiles and keeps its secrets about matters that a modern constitution in any other country would decide." At the time of the Revolutionary War, the U.S. was, well, revolutionary in its willingness to extend the vote and to build its government upon the consent of the people. Now, however, and in comparison to the rest of the world—or even to state constitutions—the federal government is not especially democratic. Political gerrymandering means that only a fraction of the seats in the House of Representatives are competitive in any given year. The Senate, which apportions seats by state rather than by population, is naturally antimajoritarian—and a supermajority of 60 votes is effectively needed to pass legislation. The president is chosen by the electoral college, another system that gives disproportional representation to less populated areas of the country. Because of these imbalances, a relatively small minority of Americans can stymie initiatives favored by a vast majority, which is why, for instance, Congress hasn't been able to change American policy in Iraq despite a national consensus that we should do so.
Geoghegan's making a partisan argument. Even Republicans acknowledge that expanding the vote usually benefits Democrats. So we see Karl Rove urging the Justice Department to vigorously prosecute voter fraud cases, and the GOP opposing representation in the House for the District of Columbia. Geoghegan goes so far as to argue that if we had majority rule the U.S. would become "a European social democracy" with an actual social safety net. Whether that's true or not is hard to say. Certainly majority rule wouldn't cut in favor of every Democratic hot-button issue. An end to gerrymandering might well mean fewer black representatives, at least initially. And majority rule wouldn't mean the more generous immigration policies that Geoghegan prefers.
But the uncertainties don't undermine Geoghegan's proposals—they reinforce it. Democracy isn't a Democratic or Republican goal; it's an American one. The U.S. was founded on the principle of participatory democracy, and, as Geoghegan argues, America "is a great civilization because it is a democracy. That's our special contribution to civilization. It's our democracy that civilizes us." Having faith in democracy is having faith in ourselves, as a nation and a people. More democracy may or may not result in the permanent liberal majority that Geoghegan envisions. But either way, we should try more of it.v