THE POLITICS OF JUDICIAL INDEPENDENCE: COURTS, POLITICS, AND THE PUBLIC
by
Bruce Peabody (ed). Baltimore:
The Johns Hopkins University Press, 2011. 352pp. Cloth $55.00. ISBN: 9780801897719. Paperback
$28.00. ISBN: 0801897726.
Reviewed
by Jack Wade Nowlin, The University of Mississippi School of Law. Email: jnowlin
[at] olemiss.edu.
What is
“judicial independence?” Do political actors today seriously threaten that
independence? How do we distinguish between legitimate and illegitimate
political influences on judicial action – both external and internal to the
judicial process? The Politics of
Judicial Independence examines
these fundamental questions of law and politics, which arise with such force in
court-centered constitutional systems. Bruce Peabody, editor of the volume, is a
constitutional scholar at Fairleigh Dickinson University. He and his ten
contributors have produced an engaging set of complementary essays examining the
constitutional politics of the judiciary’s interactions with other political
actors.
The essays
address a wide range of issues falling under the rubric of judicial
independence: recurrent patterns of Court-Congress conflicts; congressional
checks on the exercise of judicial supremacy; the presidential manipulation of
judicial power; institutional interdependence within the separation of powers;
judicial power and public opinion; judicial elections and public perceptions of
courts; judicial-legislative conflicts in common law nations; the “siege” on the
Israeli Supreme Court; judicial self-regulation and judicial authority; and the
implications of the credibility of judicial argument for judicial power.
Two
underlying themes emerge from the essays. One theme concerns contemporary
political responses to controversial exercises of the judicial power. Courts in
the U.S. and elsewhere face “intense” criticism and the potential use of
aggressive checking measures from political actors, a “new climate” of hostility
which may threaten longstanding traditions of judicial independence (pp.3-4).
The motivating force behind this book is a recognition of the political
significance of potential threats to judicial independence and the need for a
careful scholarly examination of the issues they raise. Notably, this project
requires realistically assessing the actual risks posed to courts and not
exaggerating those risks or “condemn[ing] or dismiss[ing] criticisms of judges .
. . without trying to understand in a sympathetic way [their] motivations”
(p.4).
A second
theme concerns the proper understanding of “judicial independence.” The
traditional definition of judicial independence exemplified by Federalist No.78
is linked to the judiciary’s distinctive nature as an apolitical institution,
its limited power as the “least dangerous branch” of government, and its special
functions [*708] to preserve the Rule of Law and protect the rights of
individuals. A basic theme of this book is that the traditional view should be
reconsidered in light of new scholarship and the changing legal landscape. A
revised account of judicial independence must recognize that courts are
inevitably political institutions, often exercise substantial governmental
power, and may have more limited and even quite different functions than the
traditional account of the judicial role suggests.
A brief
examination of three of the essays will establish the overall flavor of the
book. In “Congress and Judicial Supremacy,” Neal Devins examines some of the
political dynamics shaping congressional recourse to its “awesome formal powers”
over the Court – including Congress’s arguable power to strip the Supreme Court
of its appellate jurisdiction. Devins argues that it is unlikely Congress will
actually deploy its more controversial powers to check the Court because of a
combination of judicial sensitivity to congressional policy preferences,
congressional sensitivity to the broad public support for judicial independence,
and congressional indifference to the legislative branch’s own authority to
interpret the Constitution. Thus the “new climate” of contemporary congressional
sorties against the Court – including the introduction of jurisdiction-stripping
bills – is largely rhetorical in nature, calculated to appeal to core political
constituencies of members of Congress rather than to check judicial actors.
Devins, however, does observe that “[w]ide-spread accusations of judicial
activism” by elected officials and activists could “chip away” at the public’s
support for judicial independence and change part of this basic political
dynamic (p.66).
In
“Institutional Interdependence and the Separation of Powers,” J. Mitchell
Pickerill examines the U.S. Constitution’s separation of powers as a formalistic
governmental structure that in practice involves separate institutions of
government exercising shared powers “against [a] background of institutional
interdependence, comity, and accommodation” (p.101). Pickerill embraces the
revised view of “judicial independence” discussed above, a view which recognizes
that “the U.S. judiciary is inherently connected to politics in many ways” and
which does not aspire to an artificial and unattainable insulation of the courts
from political influences, whether those influences arise from within the
judicial process or from without (p.101). In Pickerill’s view, a proper
recognition of the unavoidable political aspects of the exercise of the judicial
power and the inevitability of institutional dialogue among the branches of
government would temper both the critics of the Court who attack “judicial
activism” and the critics of the critics who in turn rush to defend “judicial
independence.” Pickerill concludes that the Court’s exercise of power in recent
years has not been diminished by the rhetorical attacks of its critics.
In
“Judicial Credibility,” Louis Fisher examines the important role that the
quality of the Supreme Court’s legal reasoning can play in judicial-legislative
relations. Fisher suggests that a better understanding of the proper bases for
evaluating the persuasiveness of the Court’s legal arguments could canalize
[*709] political criticism of the Court into the most productive channels and
enable the Court to avoid the missteps most likely to provoke political
backlash. Fisher argues that discussion of the Court’s justifications for its
decisions too often centers on the question of the democratic legitimacy of its
invalidation of legislative actions rather than on the exercise of the legal
“reasoning process” that justifies the Court’s “existence and institutional
independence” within the Constitution’s structural framework (p.227).
For
instance, Fisher contends that the Court’s invalidation of the Religious Freedom
Restoration Act in City of Flores
v. Boerne is suspect not because
the Court struck down a law passed by the democratically-elected Congress but
because the Court’s constitutional reasoning is dubious. Justice Kennedy,
writing for the majority in Boerne,
concluded that Congress could not use its textually-express enforcement power
under Section Five of the Fourteenth Amendment to enact a civil rights law
establishing strict scrutiny for incidental burdens on the free exercise of
religion. Congress, Justice Kennedy asserted, has the power to pass laws to
enforce the Fourteenth Amendment (and thus the power to enforce the provisions
of the Bill of Rights that the Amendment incorporates against the states – such
as the First Amendment’s guarantee of the free exercise of religion); but
Congress could not use that power to enact the Religious Freedom Restoration Act
because the legislative branch has no power under Section Five to alter the
meaning of the First Amendment, which the Court has concluded establishes only
rational basis review for incidental burdens on religious freedom.
Congress,
however, enacted the Religious Freedom Restoration Act to implement an
interpretation of the First Amendment’s Free Exercise Clause, not as an attempt
to alter its meaning; and Congress was in fact restoring by statute an
interpretation that the Court itself had only recently abandoned. Thus the
Court’s argument in Boerne is
premised on the doubtful view that the congressional power under Section Five is
not the power expressed in the text, to enforce the Fourteenth Amendment, but
merely the lesser power to enforce the Court’s current doctrinal understanding
of the Fourteenth Amendment – whatever that understanding may happen to be and
whether or not it is correct. Fisher concludes that both the Court and its
critics could profit from a healthy dialogue centered squarely on the quality of
the Court’s reasoning and its foundation in law.
Bruce
Peabody ends this valuable volume by reminding us that judicial independence
cannot be understood in absolutist form as a prescription for insulating courts
from appropriate political criticism and constitutional checks, but it does
require that courts have the significant degree of political autonomy necessary
to fulfill their role under the separation of powers. The key is holding the
balance true. Of course, the question of the proper distribution of power
between the judicial branch and the other institutions of government within the
constitutional design will continue to produce disagreement and debate. With the
publication of The Politics of
Judicial Independence, those ongoing debates will be richer and better
[*710] informed. This powerful collection of essays will find a welcome place on
the shelf of any scholar interested in the judicial power.
CASE
REFERENCE:
City of
Flores v. Boerne 521
U.S. 507 (1997).
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© Copyright 2011 by the author, Jack Wade Nowlin.