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Judicial independence, judicial accountability & interbranch relations.

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Recent years have witnessed attacks on the courts, federal and state, that have been notable for both their frequency and their stridency. (1) Many of these attacks have been part of strategies calculated to create and sustain an impression of judges that makes courts fodder for electoral politics. The strategies reflect a theory of judicial agency, the idea that judges are a means to an end, and that it is appropriate to pursue chosen ends through the selection of judges who are committed or will commit to them in advance. The architects of these strategies seek to create the impression not only that courts are part of the political system, but also that courts and the judges who sit on the bench are part of ordinary politics.

At the federal level, pursuit of these strategies prompts politicians to curry favor by promising to hold courts and judges accountable: staffing courts (or ensuring that they are staffed) with reliable judges, monitoring them through "oversight," and, when they stray, reining them in through the instruments of politics--ordinary or extraordinary (impeachment). At both the federal and state levels, these strategies enable interest groups to wield influence by framing judicial selection in terms of the supposed causal influence of a vote in favor of or against a judicial nominee or candidate on results in high salience cases, such as those involving the death penalty or abortion.

What is the precise nature and extent of the threat to judicial independence? How, in the conduct of interbranch relations, should the judiciary respond to the impulses and incentives, both legitimate and illegitimate, that have brought us to this unhappy point in interbranch relations? Successful interbranch relations require the institutional judiciary to avoid the attitudes and techniques of contemporary politics, but not to avoid politics altogether. (2) In essence, judicial accountability, properly conceived, plays a critical role in judicial independence, and politics of a certain sort must play a role in the work of courts and the judiciary if they are to continue to serve as the guardians of our fundamental rights and liberties.

Judicial independence is merely the other side of the coin from judicial accountability. The two are not at war with each other but rather are complements; neither is an end in itself but rather a means to an end (or variety of ends); the relevant ends relate not primarily to individual judicial performance but rather to the performance of courts and court systems; and there is no one ideal mix of independence and accountability, but rather the right mix depends upon the goals of those responsible for institutional architecture with respect to a particular court or court system. (3)

From these premises I derive several additional propositions that are helpful in considering the role of interbranch relations in maintaining a desired balance between judicial accountability and judicial independence. First, judicial accountability has as many roles to play as does judicial independence. Judicial accountability should serve to moderate what would otherwise be unacceptable decisional independence, that is, decisions unchecked by law as generally understood or, in the case of inferior courts, by the prospect or reality of appellate review. In addition, judicial accountability should moderate other judicial behavior that is hostile to or inconsistent with the ability of courts to achieve the role or roles envisioned for them in the particular polity, including, for example (in the case of federal judges), "conduct prejudicial to the effective and expeditious administration of the business of the courts." (4)

Second, just as independence must be conceived in relation to other actors--independence from whom or what?--so must accountability: accountability to whom or what? Judicial accountability should run to the public, including litigants whose disputes courts resolve, and who therefore have a legitimate interest in court proceedings that are open to the public and in judicial decisions that are accessible. Judicial accountability should also run to the people's representatives, who appropriate the funds for the judiciary and whose laws the courts interpret and apply, and who therefore have a legitimate interest in ensuring that the judiciary has been responsible in spending the allotted funds and that, as interpreted and applied by the courts, public laws are functioning as intended. Finally, judicial accountability should run to courts and the judiciary as an institution, both because individual judicial independence exists primarily for the benefit of institutional independence and because appropriate intrabranch accountability is essential if potentially inapproprivate interbranch accountability is to be avoided. In each instance, proper regard for the other side of the coin--judicial independence--requires that accountability not entail influence that is deemed to be undue.

Recent scholarship has brought sharply into focus the fact that formal protections of federal judicial independence pale in comparison with formal powers that might be deployed to control the federal courts and make them "accountable." This scholarship, in particular the work of Charles Geyh, (5) has thus made it clear that the traditional equilibrium between the federal judiciary and the other branches owes its existence primarily to informal norms and customs. One such norm or custom is to eschew use of the impeachment process in response to judicial decisions that are unpopular. Another is to eschew court-packing as a means of ensuring decisions in accord with the preferences of the dominant coalition.

We know, however, that customs, norms, and traditions can change. Neither the fact that periods of friction between the judiciary and the other branches have recurred throughout our history, nor the fact that they have been succeeded by a return to normalcy, is adequate grounds for confidence that the pattern will hold. The dynamics leading to our current malaise suggest that there is reason to fear a tipping point, a point of no return to the traditional equilibrium in interbranch relations affecting the judiciary.

The current poisonous condition of interbranch relations affecting the judiciary is remarkably dangerous because of the debased notion of judicial accountability implicit in a...

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