|
Article Excerpt
Public criticism of the federal courts is nothing new. (1) Since the beginning of the republic to the present day, politicians and populace have attacked judicial opinions and decried judicial activism. For example, the response to the landmark Supreme Court decisions of the 1950s, in particular those involving desegregation and church-state relations, was a nationwide movement to remove Chief Justice Warren from the bench. (2) Billboards around the country proclaimed their aim: "Impeach Earl Warren." (3) Petitions circulated, and over one million Americans signed their names in support of the impeachment effort. (4) Some even proposed that Warren be hanged.
For as long as there has been a federal judiciary, federal judges have been blasted for purportedly overstepping their bounds. Yet by and large the judges have not abdicated their duty to invalidate laws that they believe offend the Constitution. Public criticism of judicial decisions does not, by itself, necessarily threaten the independence of the judiciary; in fact, under some circumstances, such critiques paradoxically can help bring about a more robust form of judicial independence.
Under our constitutional system, the federal judiciary wields carefully circumscribed powers, but within its proper sphere judicial authority is final and therefore absolute. Among other limitations, federal judges may not issue advisory opinions and have no authority to engage in policy-making. But while the Constitution rules certain functions out of bounds for the courts, it also insulates federal judges from the pressures that can be brought to bear in response to an unpopular, but legally required, decision. Article III guarantees that federal judges shall hold their offices for life with continued "good Behaviour."
By setting up an independent judiciary, the framers intended to prevent the other branches of government, or the people themselves, from undermining the judiciary's decisional impartiality. It is "essential to the preservation of the rights of every individual, his life, property, and character, that there be an impartial interpretation of the laws, and administration of justice." (5) The insulation of judges from popular pressures ensures that all citizens receive equal justice under the law, and prevents judges from being influenced by the whims of the public (or a powerful faction) when they decide cases. In The Federalist No. 78, Alexander Hamilton emphasized:
This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjectures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.
The way to achieve this impartiality--to free judges to decide cases based on what the law actually requires, and on nothing else--is to ensure that the judiciary is independent, or, put differently, not subject to reprisals for decisions on the bench.
But judicial independence is not an absolute or singular value defining our courts. The principle of judicial restraint is equally important--and it is inextricably linked to judicial independence. At one level, the tension between the two seems inescapable. But there is an important sense in which an independent judiciary and judicial restraint are flip sides of the same coin. Both aim to minimize the influence of extraneous factors on judicial decision-making. A judge must not decide a case with an eye toward public approbation, because whether a particular result is popular is irrelevant to whether it is legally sound. In the same way, a judge must not consult his own policy preferences (or those of whatever moral philosopher happens to be au courant at the time) when construing the Constitution or a statute, because those personal views are immaterial to what the law, fairly construed, actually provides. Judicial independence and judicial restraint thus work together hand-in-glove to channel judges' attention to the factors that are actually relevant to the proper resolution of cases.
Much is at stake if the judiciary becomes too independent or too restrained, namely individual rights and the proper functioning of the government. Those who criticize courts advocate more restraint to ensure that judges do not exceed the scope of their powers. But at the same time, it must be stressed, as Justice Sandra Day O'Connor did in a recent speech, that a court's ability to be effective depends "on the notion that we won't be subject to retaliation for our judicial acts." (6) The upside of judicial independence, then, is that it insulates judges who faithfully apply the law (albeit in unpopular ways); the downside is that judicial independence insulates judges who use their lack of accountability to shape the law in favor of their own preferred policies.
Criticism of courts comes in many forms, and recent years have witnessed many if not all of the variations. But if we compare the nature and intensity of today's criticisms with the vitriol directed at judges...
|
