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Thursday, September 28, 2006

Is "independence" the new "activism"?

There has been a lot of comment, in both the dead-tree and blogospheric media, about Justice O'Connor's recent opinion piece on "judicial independence."  (She has addressed this topic often, in speeches and appearances, since her retirement.)  She writes:

Directing anger toward judges enjoys a long -- if not exactly venerable -- tradition in our nation. President Thomas Jefferson, for instance, was a particularly spirited antagonist of judges appointed by the Federalists. Moreover, President Franklin D. Roosevelt sought to increase the number of Supreme Court justices because the court invalidated several pieces of New Deal legislation. And I can distinctly remember seeing lawns and highways across the country that featured signs demanding the impeachment of Chief Justice Earl Warren.

But while scorn for certain judges is not an altogether new phenomenon, the breadth and intensity of rage currently being leveled at the judiciary may be unmatched in American history. The ubiquitous "activist judges" who "legislate from the bench" have become central villains on today's domestic political landscape. Elected officials routinely score cheap points by railing against the "elitist judges," who are purported to be of touch with ordinary citizens and their values. Several jeremiads are published every year warning of the dangers of judicial supremacy and judicial tyranny. Though these attacks generally emit more heat than light, using judges as punching bags presents a grave threat to the independent judiciary.

Now, count me in as being all for "judicial independence."  That said, I was struck by the claim that complaints about "activist" judges who "legislate from the bench" are themselves threats, or the precursors to threats, to "judicial independence."  Then, reading Larry Solum's post on Kermit Roosevelt's new book, "The Myth of Judicial Activism" (which sounds fascinating), I wondered if "judicial independence" is, or is becoming, the new "judicial activism"?  Which is to say, does "judicial independence," as currently deployed in our public conversations, really have any content, or is it -- like "judicial activism" -- more a place-holder for other, unspoken, objections to arguments or decisions?  Thoughts?   

Posted by Rick Garnett on September 28, 2006 at 11:18 AM in Constitutional thoughts | Permalink


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Tracked on Sep 28, 2006 4:17:22 PM


The real meaning of the phrase "judicial independence" is very simply indeed: liberalism.

Posted by: Jack Thompson, Attorney | Mar 1, 2008 7:08:49 PM

Steve Burbank and Barry Friedman organized a conference, and published a book, a few years back on Judicial Independence at the Crossroads: An Interdisciplinary Approach. I recommend the entire book.

From the Burbank / Friedman chapter:

"Judicial independence exists primarily as a rhetorical notion rather than as a subject of sustained, organized study. [L]egal writing on the subject all too often seems part of a polemical debate between contending camps. . . .

"Good, serious work about judicial independence is available in both the legal and political science literatures, but there is too little of it . . .

"No rational politician, and probably no sensible person, would want courts to enjoy complete decisional independence . . .

"[J]udicial independence is a means to an end and not an end it itself. It remains for different polities to define what it is that they want from their courts and the measure (or quality) of judicial independence they believe is necessary or appropriate to secure it.

"[I]n thinking about the measure (or quality) of judicial independence that it is necessary or appropriate to the attainment of particular goals, a polity should not treat judicial independence and judicial accountability as dichotomous but rather as different sides of the same coin. That is not just because a denial of independence necessarily entails accountability but also because a modern polity's goals for its judiciary will almost surely include functions that require a measure of accountability, just as they do a measure of independence."

Posted by: Edward Hartnett | Sep 29, 2006 8:26:21 AM

One of the panelists at our school's Constitution Day panel made a similar point. And I agree there is something to this.

One way in which the terms are similar is that they often get tossed around to describe otherwise valid, constitutionally legitimate (even beyond "good or bad" as Mike describes above) acts. Courts often are accused of being "activist" when they exercise rigorous constitutional review or when they try to understand and apply badly written statutes. Similarly conduct such as jurisdiction-stripping often is labeled as a threat to independence, although it is (or at least may be) a threat that is created by, and approved by, the Constitution and the Framers' vision.

Ultimately, both are conversation-enders. Labeling a decision or judge as "activist" is designed to eliminate its legitimacy without further discussion. Similarly, labeling an act as a "threat to judicial independence" eliminate its legitimacy without further discussion of the merits of what is being done.

Posted by: Howard Wasserman | Sep 28, 2006 3:42:23 PM

I think there's a significant difference between the two phrases, though I do believe you are on to something. The difference is that there is some amount of activity that forms the core of a threat to judicial independence -- impeachment, jurisdiction-stripping, etc. -- about which most or all can agree, whereas there is no agreement even on core examples of judicial activism. To be sure, there is disagreement on whether jurisdiction-stripping and the like are good, but there is very little disagreement that they are threats to judicial independence (indeed, that's the point).

Judicial activism, by contrast, has wildly different definitions, with only somewhat overlapping principles -- overruling precedent, striking down acts of legislatures, giving effect to one's personal preferences, giving effect to personal preferences when (but only when) striking down an act of a legislature, etc. Further, because most definitions of judicial activism carry a normative judgment about the widson of the judicial decision being contemplated, we are extremely unlikely to get agreement even as to what the epitome of judicial activism is. Seminole Tribe? Roe v. Wade? Boerne v. Flores? Miranda? There's no consensus whatever.

Posted by: Mike Dimino | Sep 28, 2006 12:49:24 PM

Judicial independence sounds meaningless to me. Sounds like just a positive spin for what to say when a judge does whatever he or she wants. Of course, law professors are obsessed with trying to keep everyone else in the dark, so b.s. like "judicial independence" may serve that obfuscatory purpose nicely.

Posted by: lawlawlisa | Sep 28, 2006 12:09:08 PM

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