as “The Plumb Line: So What Else is New?” in Libertarian
Review, April, 1978
One of the
fatal flaws in the concept of "limited" government is
the judiciary. Endowed with the compulsory monopoly of the vital
power of deciding disputes, of ultimately deciding who can wield
force and how much can be wielded, the government judiciary sits
as an unchecked and unlimited tyrant.
preside over the rule of law, law that is supposed to apply to everyman,
the judges themselves are yet above the law and free from
its sanctions and limitations. When clothed in the robes of his
office, the judge can do no legal wrong and is therefore immune
from the law itself.
There is a
crucial catch-22 in this grisly situation. For if anyone would like
to argue against this arrangement, he can do so – in our archist
system – only before judges who themselves are part
of the problem rather than part of the solution. It is up to government
judges to rule on whether government judges are immune from the
law. How do you think they would decide? Well, how do you think
a group of economists would decide on the question of whether economists
should be immune? Or any other group or profession?
the United States Supreme Court ruled, in 1872, that judges were
immune from any damage suits for any "judicial acts" that
they had performed – regardless of how wrong, evil, or unconstitutional
those acts may have been. When clothed in judicial authority, judges
can do no wrong. Period. Recently a case of an errant judge has
come up again – because his action as a judge was considered
generally to be monstrous and illegal. In 1971, Mrs. Ora Spitler
McFarlin petitioned Judge Harold D. Stump of the DeKalb County,
Indiana, Circuit Court to engage in a covert, compulsory sterilization
of her 15-year-old daughter, Linda Kay Spitler. Although Linda was
promoted each year with her class, Mrs. McFarlin opined that she
was "somewhat retarded" and had begun to stay out overnight
with older youths. And we all know what that can lead to.
quickly signed the order, and the judge and mamma hustled Linda
into a hospital, telling her it was for an appendicitis operation.
Linda was then sterilized without her knowledge. Two years later,
Linda married a Leo Sparkman and discovered that she had been sterilized
without her knowledge. The Sparkmans proceeded to sue mamma, mamma’s
attorney, the doctors, the hospital, and Judge Stump, alleging a
half-dozen constitutional violations.
All of these
people, in truth, had grossly violated Linda’s rights and aggressed
against her. All should have been made to pay, and pay dearly, for
their monstrous offense. But the federal district court ruled otherwise.
First, it ruled that mamma, her lawyer, and the various members
of the "healing professions" were all immune because everything
they did had received the sanction of a certified judge. And second,
Judge Stump was also absolutely immune, because he had acted in
his capacity as a judge, even though, the district court acknowledged,
he had had "an erroneous view of the law." So, not only
is a judge immune, but he can confer his immunity in a king-like
fashion even onto lowly civilians who surround him.
US Court of Appeals, Seventh Circuit, unaccountably didn’t understand
the program, and so it reversed the district court, claiming that
Judge Stump had forfeited his immunity "because of his
failure to comply with elementary principles of due process,"
and had therefore in a sense "not acted within his jurisdiction."
To allow Stump’s action to stand, said the appeals court, would
be to sanction "tyranny from the bench."
Now this was
pretty flimsy stuff, and besides it opened an entertaining wedge
toward holding judges accountable to the law and to the protection
of rights like everyone else. But this would have shaken the foundations
of our monopoly archist legal system. And so the US Supreme Court,
on March 28, set the matter straight. In a 5–3 decision in
this illuminating case of Stump v. Sparkman, Justice Byron R. ("Whizzer")
White, speaking for the majority, sternly reminded the appellate
court of the meaning of the 1872 ruling:
will not be deprived of immunity because the action he took was
in error, was done maliciously or was in excess of his authority.
Rather, he will be subject to liability only when he has acted
in the "clear absence of all jurisdiction."
conceded that no state law or court ruling anywhere could be said
to have authorized Judge Stump’s action; but the important point,
he went on, is that there was no statute or ruling which prohibited
such an action by the judge. Therefore, even though Stump had approved
the sterilization order without legal authorization, without holding
a hearing, without notice to the child, or without her being represented
by a lawyer or guardian, it was still a "judicial act"
and therefore beyond the law. Backing Justice White were Justices
Warren Burger, Harry Blackmun, William Rehnquist, and John Stevens.
For the minority,
Justice Potter Stewart, joined by Lewis Powell and Thurgood Marshall,
argued that the judge’s unauthorized action was "beyond the
pale of anything that could sensibly be called a judicial act."
He pointed out that Stump’s action
was in no
way an act "normally performed by a judge." Indeed there
is no reason to believe that such an act has ever been performed
by any other Indiana judge, before or since.
In a ringing
statement, Stewart concluded, "A judge is not free, like a
loose cannon, to inflict indiscriminate damage whenever he announces
that he is acting in his judicial capacity."
Stewart, but apparently and unfortunately he is so free.
himself will be free for some time to come. Apparently the masses
of DeKalb County were not concerned about Linda’s rights, for they
reelected him last year to another six-year term as circuit-court
judge. Bruce Ennis, legal director of the American Civil Liberties
Union, charged that the White decision meant that "judges can
violate citizens’ constitutional rights and get away with it"
and "can ignore the law with impunity." Ennis said that
the ACLU would ask for legislation from Congress reversing this
but why the shock and surprise?
White and his
being thick as judges, guildsmen defending their guild
- were defending
the very cornerstone of our archist system: the immunity from
the law of the ultimate decision makers.
immunity strikes at the very heart of that system, and paves the
way for a truly free America in which rights would be protected
fully, in which no man or group of men would be above the law, or
would have a compulsory monopoly of judicial services. We hail Mr.
Ennis and the minority judges; but do they know the full implications
when we pit citizens’ rights against the "loose cannon"
of judges and the "tyranny of the bench"?
N. Rothbard (1926–1995) was dean of the Austrian
School, founder of modern libertarianism, and academic
vice president of the Mises
Institute. He was also editor — with Lew Rockwell —
Rothbard-Rockwell Report, and appointed Lew as his