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Wednesday, October 03, 2012

Geographic separation of powers

    Consider this comparison triggered by attention to the U.S. and German high courts this season.  The German Constitutional Court is located in the university town of Karlsruhe, near the French border, far from the seat of government in Berlin.  Imagine the U.S. Supreme Court sitting in, say, Boulder, Colorado, or Madison, Wisconsin (cities roughly the size of Karlsruhe).   Germany is the only country I know of that locates its high court out of the national capital, although the EU divides up its institutions across European cities.  The idea, which my German colleagues here endorse as a sound one, is that that geographic distance from the center of government helps to remove the court from politics.  Geographic separation reinforces separation of powers, and law/politics separation.

    For all of American law’s concern with legal principle, judicial integrity, etc., not to mention Justice Roberts’ politically clever characterization of his job as merely that of an umpire “calling balls and strikes,” Americans just don’t have the same faith that law can be separated from politics.  Trey Childress’ post last week touched on this theme from a different angle.  But the difference in legal ideology aside, the interesting thing to me is to consider whether locating the U.S. Supreme Court in a small regional city far from D.C. would affect who would be willing to serve on the court.  Would anyone turn down a Supreme Court slot because they had to live in Madison or Boulder?  Would some, to the contrary, find such a site more attractive?  Justice Souter comes to mind: he famously hated D.C., and resigned much earlier than most justices do to return to his beloved New Hampshire.  But he’s surely an outlier in that preference.  Yet plenty of justices have spent their free time far from D.C. (Douglas in Washington state, Stevens in Florida), and the Supreme Court is pretty close to a nine-month-a-year job.

    The other thought is whether the separation really would have some effect of separating justices from politics by separating them from politicians—especially Washington’s partisan social scene in which many justice have long joined.  The current justices’ political friendships and partisan networking are nothing new, of course.  Noah Feldman’s book “Scorpions” recounts plenty of political socializing and private counsel sessions between FDR or his staff and the justices he appointed.  (And Justice Douglas was a top prospect for the Democratic ticket in the1940-48 elections.)  But one wonders whether fewer dinner parties and poker games would make a difference, given the ease of communication otherwise and the justices’ frequent travel, whether to partisan conferences or to hunting trips with one’s vice-presidential buddy.

Posted by Darryl Brown on October 3, 2012 at 08:01 AM | Permalink

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