The Limbaugh Code
The New York Times best seller no one is talking about.
If a book lands on the best-seller list and nobody hears it, did it really happen? Mark R. Levin's Men in Black: How the Supreme Court Is Destroying America was ranked eighth on the New York Times list this week; it's been on that list for six weeks now, and seems to be leaping off the bookshelves, despite the fact that it concerns constitutional law and the U.S. Supreme Court. Yet it has been reviewed virtually no place and written up by almost no one. True, Charles Lane did a piece about it in the Washington Post a few days ago; he noted that absolutely nobody who writes, talks, or thinks about the high court has even read it. It's selling, it seems, almost entirely due to endorsements by Rush Limbaugh, Sean Hannity, and Fox News.
Men in Black was published by Regnery Publishing—the outfit that brought us Unfit for Command: Swift Boat Veterans Speak Out Against John Kerrylast summer. Serious journalists spent serious time debunking the claims set forth in the Swift Boat book, but absolutely no one seems to be taking on Levin. This isn't too surprising: For one thing, there's no election on the line. And for another, no serious scholar of the court or the Constitution, on the ideological left or right, is going to waste their time engaging Levin's arguments once they've read this book.
I use the word "book" with some hesitation: Certainly it possesses chapters and words and other book-like accoutrements. But Men in Black is 208 large-print pages of mostly block quotes (from court decisions or other legal thinkers) padded with a foreword by the eminent legal scholar Rush Limbaugh, and a blurry 10-page "Appendix" of internal memos to and from congressional Democrats—stolen during Memogate. The reason it may take you only slightly longer to read Men in Black than it took Levin to write it is that you'll experience an overwhelming urge to shower between chapters.
The argument here is not new. In fact, one of the reasons it's impossible to call Men in Black a work of legal scholarship is that there is not an original piece of analysis in it. Levin is railing against the Supreme Court for being a bunch of "activist judges" that "now sits in final judgment of essentially all policy issues, disregarding its constitutional limitations, the legitimate role of Congress and the President, and the broad authority conferred upon the states and the people." So far so good. The country needs a smart, scholarly book anatomizing for lay readers the arguments against the high court's ever-increasing involvement in political life.
But this is not that book. Men in Black never gets past the a.m.-radio bile to arrive at cogent analysis. Each of the first three chapters ends with the word "tyranny." Absent any structure or argument, this book could just have been titled Legal Decisions I Really, Really Hate. Levin follows the lead of lazy pundits everywhere who excoriate "activist judges" without precisely defining what constitutes one. He offers four random examples of "activist decisions" which mysteriously include Dred Scott v. Sandford (which was nothing of the sort) and Korematsu v. United States (a decision he trashes for its deference to executive-branch authority in wartime shortly before shredding the current Supreme Court for refusing to uphold the same principle in last summer's enemy-combatant cases). Levin rails for the first half of his book about the ways in which the high court usurps Congress and the president, then rails about the court's failure to strike down their campaign finance law.
And his attempts to draw telling distinctions between similar cases—any legal scholar's primary task—are almost laughably off-mark. Take this example: Discussing last summer's Rasul v. Bush case, Levin dismisses Justice Stevens' analysis distinguishing enemy combatants in a 1950 opinion from the enemy combatants at Guantanamo Bay because "the principle is the same" and "the two cases are identical in two significant respects." If judges in fact got to decide cases based solely on the fact that "the principle is the same"—that is, that each case is kinda analogous—we really would have a runaway judiciary.
Enough already. The book is silly. But the maddening question here is why Levin, Limbaugh, and—as of yesterday, Tom DeLay—have stopped threatening just "liberal activist" judges and have started threatening the judiciary as a whole. Levin, recall, is excoriating a court composed of seven Republican appointees. He's trashing the body that's done more to restore the primacy of states' rights, re-inject religion into public life, and limit the rights of criminal defendants than any court in decades. He seems not to have noticed that the Rehnquist court is a pretty reliably conservative entity. Reading his hysterical attacks on Justices O'Connor and Kennedy, you'd forget they are largely on his side and substantially different creatures from the court's true liberals. But Levin seems as incapable of distinguishing between jurists as he is incapable of differentiating between cases or doctrine. He's happy to decimate the court as a whole.
Consider Tom DeLay's similarly broad comments from yesterday, following the death of Terri Schiavo: "This loss happened because our legal system did not protect the people who need protection most, and that will change," DeLay warned. "The time will come for the men responsible for this to answer for their behavior," he said. In addition to sharing Levin's unfortunate tendency to label all federal judges as "men," DeLay is now attacking all the judges involved in Schiavo—Republicans, devout Christians, and strict constructionists among them—for failing to interpret the law to suit him. This is not just an attack on some renegade liberal jurists. Levin, Limbaugh, and DeLay have subtly shifted their attack to encompass the entire judiciary.
Perhaps my colleague Dan Gross is right and the wing-nuts are simply starved for new subjects. But maybe the far-right really thinks that attacking the independence of the judiciary as a whole is a smart move. Levin pays some lip service to the idea that the federal bench needs to be stacked with right-wing ideologues in his penultimate chapter. But he betrays early on his fear that even the staunchest conservative jurist is all-too-often "seduced by the liberal establishment once they move inside the Beltway." Thus, his real fixes for the problem of judicial overreaching go further than manipulating the appointments process. He wants to cut all judges off at the knees: He'd like to give force to the impeachment rules, put legislative limits on the kinds of constitutional questions courts may review, and institute judicial term limits. He'd also amend the Constitution to give congress a veto over the court's decisions. Each of which imperils the notion of an independent judiciary and of three separate, co-equal branches of government. But the Levins of the world are not interested in a co-equal judiciary. They seem to want to see it burn.
I can understand completely why the serious legal thinkers of this world have no interest in engaging with Levin on his legal scholarship. Jeff Rosen probably had to swallow hard—twice—before even referencing Men in Black in his op-ed on judge-bashing last weekend. But ignoring this book won't keep it from tearing up the best-seller list; and it's unwise to write off everyone who reads it as a Swift Boat lunatic. In the past weeks, we have seen a quiet sea change with death threats to—and actual attacks on—judges becoming disturbingly common. To refuse to acknowledge the call-to-arms behind Men in Black, as the press and most of the legal academy has done, can feel like intellectual integrity. But it also represents a failure to take part in a national conversation that may have very serious long-term consequences for the courts. It may be a conversation that requires some of us to take a lot more showers. So be it.
Dahlia Lithwick writes about the courts and the law for Slate.
Photograph of Antonin Scalia on the Slate home page © Jason Reed/Reuters/Corbis.