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Thoughts on Judicial Independence

As the Alito confirmation barge passes through the thick and troubled waters of the Senate this week, the topic of judicial independence has come up repeatedly. Its worth sifting through the intellectual detritus to get a grasp on what judicial independence means in the American context. A lot is at stake.

Undoubtedly judicial independence means in part freedom from outside control. This was essentially accomplished with ratification of the Constitution. Unlike Europe, American federal judges were insulted from retaliatory removal by displeased executives. They owed their prestigious positions to no one. Also, they were freed from being forced out by a displeased legislature. There is a constitutional guarantee that their salaries will not be diminished. We have also done an excellent job of keeping them free from the threat of violence from dissatisfied parties. Though there have been instances of violence against judges, this has usually been at the hands of lunatics. Judges here are not assassinated by political enemies or powerful litigants. This aspect of judicial independence is secure.

Some, including former Chief Justice Rehnquist, have suggested that there is more to judicial independence. To them, independence means deference by the legislative and executive branches, the states and the people. Independence then becomes supremacy. Threats to this independence are seen by some in the form of judicial term limits or the limiting of jurisdiction. These measures have been suggested by people who see the power of the federal courts expanding and encroaching on the other two branches. Rehnquist’s position seems to have been that the judiciary was meant to be as powerful as it has become, and the only alternative would be to make it subservient. Restricting jurisdiction, which Congress has explicit power to do, would effectively accomplish this. Term limits have their own baggage.

But to limit jurisdiction is to eschew the concept of judicial review entirely and call into question the fundamental concept of separation of powers. Both liberals and conservatives have at times (though perhaps seldom at the same times) celebrated judicial review as a fundamental element of the constitutional. Though it has spawned judicial usurpations such as Roe and failures such as Dred Scott, it has overall been a neutral third party in constitutional matters. In what realms of law are we so confident of infallibility that we would surrender unrestricted power to Congress or the President and ask no recourse?

Is there a way out of this impasse? The judiciary’s march toward supremacy must be somehow checked, yet all obvious methods of doing so effectively eviscerate what we only want to control.

The answer lies in another aspect of judicial independence that is often ignored. There are powerful interests that could lean on a person who was judge beholden to an electorate or a president. But human experience has shown that these influences are nothing compared to the temptations that will emerge from within the person themselves. If men were angels, Madison wrote, the entire enterprise of government would be unnecessary. But this quote is often assumed to be a general remark about the citizens at large. In fact, the rest of this quotation from Federalist #51 is important. “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

The same stark assessment given to the masses applies to political figures. The same avarice and vanity will afflict them. A thorough definition of judicial independence includes the sense of duty and parameters to encourage performance of that duty. A judge should be put in a position in which he or she has a reasonable chance to master themselves when discharging their duty. This is much like a traditional view of freedom as not some shallow and ultimately meaningless license, but an ordered liberty. This is not because they might somehow develop a dependency upon the adulation of the mob or upon the exercise of extreme political power, but because every man already has those faults to some degree. Such weakness is to be expected. Ruling on clearly enunciated principles, ruling in a context that ensures outside review, ruling within a more transparent structure; all of this would go a long way toward freeing a person from the temptation to please the crowd, and give them guidance also when tempted to simply pronounce their preference.

As the federal judiciary has become more powerful, such temptations have increased. As the court system became bloated with cases, the courts could not keep up. The essential collaborative functions began to break down. Many courts now feature panels deciding important threshold issues. Individual judges sit as the gatekeeper for cases of a certain kind or from a certain region. District courts are split up and spread out across thousands of miles. Judges have enormous administrative tasks that add to the sense that their time is limited, that perfect constitutional reflection is impossible, and that therefore only the “important” cases ought to get heard. Also, the sheer number of cases heard at the appellate level ensures that only a tiny fraction will be subject to review by the Supreme Court, thus making the appellate court effectively the last word. Also, Congress’ accommodating spirit has ensured that any SCOTUS decision will be final. The nation has grown accustomed to bowing down to judicial pronouncements, and judges have grown accustomed to giving them.

Seen in this light, the issue can be properly phrased. How do we oblige the federal judiciary to control itself? Term limits and jurisdiction-stripping only mitigate the duration and locality of judicial usurpation. There is in fact only one sure method to rehabilitate the judiciary without destroying its independence. It requires the ponderous machinery of Constitutional amendment and will therefore require time to ripen. But ripen it will as conservatives weary of judicial supremacy and liberals see their judicially-enshrined policy preferences swept aside by more philosophically conservative courts. If federal judges are to be truly independent, they must in fact be made to control themselves. A carefully crafter amendment could accomplish that, and perhaps such an amendment can be explored in future posts.

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This page contains a single entry from the blog posted on January 12, 2006 9:22 PM.

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