Vol. 12 No. 12 (December 2002)
JUDICIAL INDEPENDENCE AT THE CROSSROADS: AN INTERDISCIPLINARY APPROACH by Stephen B. Burbank and Barry Friedman (Editors). Thousand Oaks, CA: Sage Publications, 2002. 298 pp. Cloth $69.95. ISBN: 0-7619-2656-9. Paper $34.95. ISBN: 0-7619-2657-7.
Review by Roger E. Hartley, School of Public Administration and Policy, University of Arizona. Email: email@example.com .
In the past decade, there have been few subjects or debates in the field of law and courts that have been as politically salient as that of judicial independence. If one searches law reviews and other academic journals, it is clear that the subject is of continuing interest to scholars. Studies of judicial independence highlight the relationships between judicial attitudes, motivations, institutions and how these affect court decisions. There is also great interest in the foundations and reform of legal institutions that may affect judicial independence in United States courts (federal and state), courts of other nations, and courts that even cross the boundaries of nations. Beyond scholarship, though, judicial independence is common as a public policy debate touching on what the role and power of courts should be in societies around the world. There is even room to believe that judicial independence has evolved into a political movement of sorts. Even with this degree of interest and attention to judicial independence, it becomes clear from reading, JUDICIAL INDEPENDENCE AT THE CROSSROADS, that we have little understanding of, or agreement about, the meaning of the concept. We also learn that it is very difficult to separate the meaning of judicial independence from the politics that surround it.
Professors Burbank and Friedman provide an edited volume of works that sheds light on what we know and don't know about judicial independence. The project originated in a conference at the University of Pennsylvania, jointly sponsored by the American Judicature Society and the Brennan Center for Justice at New York University, and whose organizers purposely sought out a diversity of thought by including some 30 prominent academics from four different disciplines. From these papers and discussions, the co-editors assembled nine papers that best reflected the themes of the conference. The work is indeed interdisciplinary, including essays from political scientists, law professors, economists, and sociologists, who bring not only differing perspectives of their respective disciplines but also a diversity of approaches to research (e.g., normative and empirical).
The essays in this book demonstrate that contemporary debates about judicial independence can be overly simplistic. The authors provide an excellent examination of judicial independence that tends to raise more questions than answers. This is their greatest accomplishment. The book is divided into four parts: (1) an introduction and overview that "reconsiders" judicial independence; (2) a look at the theory and meaning behind judicial independence; (3) an examination of theory and evidence of what we know about judicial independence; and (4) a look at the comparative dimensions of judicial independence. For the most part, the book is nicely organized but suffers some from a lack of a concluding chapter to unify the topics, as well as introductions and summaries in each of its parts.
Reconsidering Judicial Independence
The first part provides two works that introduce the project as well as misconceptions about the meaning of judicial independence. In the introduction, Burbank, Friedman, and Goldberg provide a history of the conference that gave rise to the book and a useful overview of the chapters to follow. They illustrate that there is considerable disagreement over what judicial independence really means, that there are a variety of perspectives from which we can view judicial independence, and that when studying judicial independence, scholars need to focus on courts individually as units of analysis. On this last point, Burbank, Friedman, and Goldberg note that "policy debates and academic research about the judiciary should separate high – or constitutional – courts from other courts" (7). For instance, they argue that debates about judicial independence make the mistake of "jumbling" higher and lower courts. Since appellate courts have greater authority to make policy than trial courts, they may necessitate less insulation in favor of accountability. In addition, reforms that are adopted to protect independence may miss the mark for courts at different levels.
In the second essay, Burbank and Friedman further illustrate that a lack of research and understanding of judicial independence limits our ability to assess effectively various public policy solutions. Burbank and Friedman offer three key barriers to understanding judicial independence. Despite myths to the contrary, they argue that 1) judicial independence is a political concept that is a means to more than one end; 2) judicial independence and accountability are not warring concepts; and 3) judicial independence is not a monolith that applies equally to every type of court everywhere. Because of these barriers to understanding judicial independence, the authors consider that much of the debate over judicial independence can be confused, that scholars in different disciplines (e.g., law and political science) talk past one another, and that we apply the concept as attributed to high courts when we know very little about judicial independence in lower courts. On this last point, because we know so little about lower courts, we do not consider their important differences when debating how much independence courts and judges should (or do) have. Burbank and Friedman's most useful observation in this chapter is that, while all judges may pursue their policy preferences on the bench, variation in constraints (e.g., norms, rules, and environments) at different judicial levels can produce greater and lesser degrees of independence.
The Meaning of Judicial Independence
The second portion of the book is devoted to the meaning of judicial independence and its theoretical dimensions. The two chapters in this section focus upon the difficulty of deriving a definition for judicial independence that is useful to scholars and public policy advocates. Lewis Kornhauser notes that judicial independence can apply both to individual decisions of a judge as well as an entire legal system, or, on the other hand, it can be viewed as a normative and empirical concept. Rubin observes that the concept also suffers from adherence to the "three separate branches of government" metaphor found in American political culture. Rubin argues that in the modern administrative state, the functions of each branch of government overlap and are not all that distinct. Because of this separate branch myth, scholars and policy advocates mistakenly focus on the structure of government (e.g., whether the legislative and executive branches of government have too much power over judges) when the reality is that the functions of government are a "network of interacting units" (91).
Because of the definitional problems inherent in the concept, both Rubin and Kornhauser suggest changes in how we view judicial independence. Rubin argues that judicial independence is far more complex than we realize and that future research should focus on micro-politics such as the signals that judges receive from other political actors and how these signals affect their independence. Kornhauser ends more pessimistically by arguing that we would be better informed if we would abandon the concept altogether (54).
Theory and Evidence on Judicial Independence
The essays in the third part of the book assess what we know about judicial independence from theory and empirically based research. One of the most interesting chapters in the book is Paretti's appraisal of the social science evidence behind the claims of judicial independence scholars. Paretti examines studies of judicial selection, judicial decision-making, public confidence in courts, and whether the courts protect individual and minority rights. In each, she finds that many of the claims are based on myth, ideals, and normative views, rather than fact. For example, she notes that despite the salary and life tenure protections granted federal judges, politics still exerts heavy influence on judges. Paretti concludes by calling for more empirical and theoretical rigor in judging judicial independence reforms, and she ends by suggesting that we should embrace the limited independence of our political judiciary and its role in democracy—rather than using "myth" to expand the power of courts beyond which it was intended.
Each of the pieces by Cameron, Franklin, and Geyh, although different, focuses on the importance of norms and customs to judicial independence. Cameron assesses studies of power, suggesting that formal, structural protections are neither necessary nor sufficient to protect judicial independence (140). Therefore, it is important to examine the congruence between the values of judges and those of other political actors in the system. Cameron's review of social science research does suggest, though, that judicial independence may support civil liberties, that "rule of law" (but not necessarily judicial independence) values may be linked to economic growth, and that knowledge of how independence affects democratic stability is incomplete. Each of these subjects, according to Cameron, requires more thoroughgoing research. Still, one of the most important points raised by Cameron's review of existing research is that, even if structural protections of independence exist, we still must assume that independent judges will actually support economic growth, civil rights and liberties, and provide checks on the other branches. These, as Paretti's work suggests, may only be assumptions.
Franklin's chapter also questions the viewpoint that structural changes are not as important as behavior. He considers, for example, the assumption that non-partisan elections provide more structural independence to judges than partisan elections. Interestingly, he argues the opposite—that without the basic information afforded to voters by party labels, voters may be left to rely solely on attacks on judges made by political interests. Therefore, voters may be more likely to punish judges for single issues or cases than they would if they could identify the judge with their political preferences.
Geyh's chapter also stresses the importance of norms and customs in protecting the independence of judges. Geyh makes a very useful and important argument that, while the other branches do have checks and powers over the courts, it is customary for them to respect the independence of the courts—and to not use them. The institutionalization of these customs, then, can be the most powerful protections of independence. Geyh uses the norm against "court packing" as an example of a custom that has been followed over time by the other branches. While attempts to pack the courts (or unpack them) have occurred, customs against interfering with the courts and politicizing them deter other branches from efforts to capture the judiciary. Most of the historical evidence in Geyh's chapter, however, examines the 19th and early 20th centuries and does not address the more current controversy related to the selection of lower federal court judges. These more recent events may be worth exploring because this newer "battle over the bench" by both political parties may be enough to dampen norms against court packing.
Comparative Dimensions of Judicial Independence
The last portion of the book consists of two chapters related to the comparative dimensions of judicial independence, one by Epstein, Knight, and Shvetsova, and the other by Scheppele. Epstein, Knight, and Shvetsova study the foundations of judicial selection systems in a comparative framework and pose questions related to whether differing selection systems really constrain judges. They conclude that political uncertainty typically produces the types of selection systems that scholars associate with granting more independence (e.g., life and term appointments). On the contrary, they argue that as political uncertainty decreases, selection systems are designed to limit judges’ opportunities to vote their policy preferences. In each of these respects, the authors provide an excellent theory for why independence may be encroached upon by other branches of government. They also provide a theory and testable hypotheses for future research. The most compelling point of this article, which merits more research, is that the choice of judicial institutions (e.g., selection systems) is based on the short and long term goals of pre-existing governments, which is subject to a bargaining process. As such, the types of institutions that are chosen are politically based and such changes may influence both how the judiciary functions as well as its independence.
Scheppele examines the reactions of judiciaries to political pressure in a comparative context. In particular, Scheppele explores the minimum requirements of judicial independence as well as its outer boundaries. Most interesting is her exploration of what, if any, difference there is between a judge being ordered to decide in a particular way and having a very specific statute that directs interpretation. In the end, Scheppele argues that a key and fundamental part of judicial independence is the power of judicial review, which allows judges to turn to a "higher power" (e.g., constitutional provisions) in an effort to blunt the aggression of the other branches. Therefore, "ordinary legal norms can be trumped by higher norms of a more general sort" and the acceptance of such judge-made law by society may secure independence (269).
Judicial Independence and the Judicial Independence Movement
The effort of the scholars in this book to promote understanding about judicial independence is quite impressive. In an effort to explain judicial independence, the scholars stumble upon something very important—that we truly have disagreements on what judicial independence means, that it is difficult to define, and that it is hard to separate the empirical notion of judicial independence from the normative (and more political) notion of the need for judicial independence. Scholars and students alike should read this book if for no other reason than to become puzzled, to ask more questions, and to listen to the calls that these scholars make for more research.
In particular, we learn from the essays that many of the assumptions and claims about judicial independence are based on simple notions of the concept and may not be true. For example, Scheppele's chapter argues that we cannot have independence, to some degree, without a higher power of judicial review—even though the power of judicial review is often what elicits calls for accountability from the other branches. We also learn that reforms that are consistently offered to "protect" judicial independence (e.g., changes in selection methods) may not have the impact that is assumed (see Franklin's essay on non-partisan elections). Indeed, we learn from Burbank and Friedman that reforms offered to insure or protect judicial independence may not reach their intended goals because we know so little about the political environments of state courts, trial courts, and courts abroad. These notions are further reinforced by Geyh’s and Cameron's calls for more attention to political norms.
The essays also suggest, but do not address, that there may be much more behind arguments about judicial independence than protecting the integrity of courts and thereby safeguarding their benefit to society. To some degree, Epstein, Knight, and Shvetsova get us thinking along these lines in their work on the choice of judicial institutions made by states. According to their work, the foundations of (and changes to) judicial selection systems have deep political roots and are offered by those who have short and long-term policy goals. These theoretical underpinnings are especially important when we consider the current interest-based movements to protect and establish judicial independence in America and abroad.
This movement can be seen in the enhanced presence in the 1990s of organizations and interest groups to "protect" judicial independence (e.g., Citizens for Independent Courts, the Brennan Center for Judicial Independence, and the American Bar Association and American Judicature Society's projects to protect judicial independence, among others). We may learn a great deal more about the politics surrounding judicial independence by delving into the origins and motivations of these efforts to reform and protect the status quo. For example, what are the political or economic motivations of these groups and why have they formed? In some respects, how closely tied are the interests of such groups to the growth of scholarship in this area? More cynically, is the judicial independence movement about protecting the status of elites within the judicial system? Is independence about protecting the gains that courts have made for interest groups in the past? Is independence more likely to be evoked when there are efforts to pack the courts or change policy made by courts in the past? Is judicial independence about securing economic growth and protecting property interests? Examining these questions, may get us closer to understanding why judicial independence matters (especially given Kornhauser's argument that we should abandon the concept).
JUDICIAL INDEPENDENCE AT THE CROSSROADS is a fascinating book that raises important questions about a concept that is often used, but that is poorly understood. The goal of providing an interdisciplinary approach is successful and helps us see the complexity of the issues. In addition, it may help redirect social science study away from the decision making of appellate court judges to understanding the behavior and environments of lower courts as well as courts around the globe. The diversity of viewpoints in this book also provides scholars and students with numerous important avenues of research.
Despite these strengths, the overarching weakness of the book is that the essays, together, do not provide a coherent message. This is clearly a difficult task to accomplish given the book’s range and diversity of scholarship. Still, many of the chapters overlap in their efforts, and some parts (e.g., comparative dimensions) look as if they were simply added to broaden the book’s scope. I would recommend a conclusion by the editors or introductions and conclusions for each of the book's parts. This flaw does not detract from the value of the essays as individual efforts but does make it difficult to assess them as a whole collection. That said, I would highly recommend this book for all scholars of public law because of its richness of information as well as how the essays call into question the common assumptions about what judicial independence is and how it can be protected (or if it should be protected at all). I would also recommend assigning this book in graduate and upper level undergraduate courses on law. However, because of the lack of unification in the book, I would suggest picking and choosing specific articles to assign or to ask students to read the entire book and create the concluding chapter to the book that I find missing.
Copyright 2002 by the author, Roger E. Hartley.