Independence day: thinking seriously about judicial independence, and the state of our courts

National Review, May 23, 2005 by Ramesh Ponnuru, Robert P. George

UNIVERSITY OF CHICAGO law professor Cass Sunstein thinks that we are entering a new and "worrisome" phase in the political struggles over the courts: The Right is mounting "a large-scale challenge to judicial independence." The editors of the Washington Post think that "the past few weeks have seen an aggressiveness in conservative attacks on the judiciary that cumulatively takes one's breath away" and warn that some Republicans are crossing "red lines beyond which legislators cannot go without threatening judicial independence." Al Gore says, "Through their words and threats, [some] Republicans are creating an atmosphere in which judges might well hesitate to exercise their independence for fear of congressional retribution, or worse."

Concern about threats to judicial independence is not limited to liberal academics, journalists, and ex-politicians. Ted Olson, President Bush's first solicitor general, wrote an op-ed for the Wall Street Journal titled "Lay Off Our Judges." Reminding us that our "independent judiciary is the most respected branch of our government, and the envy of our world," he asserted that it would be wrong for Congress to impeach judges or remove jurisdiction from federal courts. Chief Justice William Rehnquist's annual report on the federal judiciary also cautioned against any attempt to check the courts other than "the gradual process of changing the federal Judiciary through the appointment process." He concluded the relevant section of the report thus: "Let us hope that the Supreme Court and all of our courts will continue to command sufficient public respect to enable them to survive basic attacks on the judicial independence that has made our judicial system a model for much of the world."

Sunstein is right about one thing: The politics of the judiciary is indeed entering a new phase. For years, conservative critics of judicial usurpation have attempted to combat abuses by trying both to get better judges appointed and to amend the Constitution to undo particularly objectionable decisions. Republicans continue to pursue both strategies. They are trying to abolish the filibuster of judicial nominees in order to get better judges on the bench, and some want a Federal Marriage Amendment to prevent usurping judges from redefining our most important social institution.

But having largely failed to arrest by these methods the federal judiciary's arrogation of power, conservatives are now increasingly looking at structural reforms to the power of the courts. In 2004, the House of Representatives passed bills that would limit the jurisdiction of the federal courts over the Pledge of Allegiance and the Defense of Marriage Act. In the aftermath of the Schiavo case, Tom DeLay, the House majority leader, reiterated his interest in impeaching wayward federal judges. Others are wondering about the merits of term limits for federal judges.

But many Republicans--including the president and vice president--have sworn up and down that they, too, support judicial independence. Indeed, very few people explicitly repudiate judicial independence. The facts suggest that what we're seeing is not "a large-scale challenge to judicial independence" so much as a debate about what judicial independence, properly considered, means.

NOT A TINPOT DICTATORSHIP

Almost everyone would agree that a reasonable definition of judicial independence should include the ability of judges to make decisions they believe follow the law, without fear or favor. When we lament the absence of an "independent judiciary" in other lands, we generally mean that, in a dispute, the courts in these places will side with the politically connected or the rich. Almost everyone--everyone, we suppose, but the family members and friends of tinpot dictators--can see the value of having a judiciary that is independent of such pressure. It is also reasonable to regard judicial independence as including the norm that judges' decisions are almost always binding on the parties to a case. If the executive branch could routinely ignore judicial decisions it disliked, for example, then the executive would have taken on a judicial function, and thus, to that extent, there would be no judiciary independent of other parts of the government.

The first thing to note about this kind of judicial independence is that it should constrain judges at least as much as anyone else. If judges themselves allow their political preferences to affect their reading of (or worse, to trump) the law, then they squander what is valuable about judicial independence. Likewise if they place the institutional interests of their courts ahead of the law, effectively making themselves parties to the case. If these things have happened on a wide scale, as we and many other conservatives (and even some liberals) believe, then they have happened at a cost to judicial independence--and it makes little sense to accuse anyone who wants to do something about it of opposing judicial independence.

Teasing out the view of judicial independence implicit in the remarks of Sunstein, Rehnquist, and the others is a little tricky, but it appears to go well beyond the binding character of court rulings and the absence of pressure on judges to reach particular results. These commentators also tend to take judicial independence as requiring that the other branches a) regard the courts' say on constitutional meaning as final and b) apply no checks on the courts other than appointments and amendments. In practice, "judicial independence" becomes identical to maximal judicial power.