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Thursday, October 11, 2012

Judicial Legitimacy When the Stakes Are Personal

I just finished reading the Federal Circuit’s new opinion in Beer v. United States, in which a divided en banc panel held that the Compensation Clause of the Constitution bars Congress from revoking cost-of-living-adjustment (COLA) raises for sitting federal judges.  The majority concluded that current Article III judges had reasonably relied on the provisions of the Ethics Reform Act of 1989, which set out the formula for automatic annual COLA raises.  The majority also concluded that Congressional legislation revoking the judges’ COLA raises in certain subsequent years constituted an impermissible diminution in judicial salary.  In reaching its decision, the Federal Circuit overruled its own 2001 decision in Williams v. United States, and distinguished the Supreme Court’s decision in United States v. Will, on which the Williams case relied.  A sharp dissent argued that the majority’s position, no matter how reasonable or just, impermissibly disregarded an authoritative opinion of the Supreme Court.

The Beer case is a gold mine for those of us who teach and think about the judicial process.  Among other things, it touches directly on the debate over pragmatic approaches to judging, judicial ethics and recusal, federal judicial selection, the legislative-judicial relationship, and the process of justifying decisions in written opinions.  It also offers an interesting demonstration of how a court can secure the legitimacy of a decision when the judges themselves are not – indeed, cannot be – neutral.

The neutrality of a decisionmaker is a well-recognized component of procedural fairness, and one of the most important contributors to the legitimacy and public acceptance of a decision.  Public perceptions of whether legal procedures and outcomes are fair often turn on the belief that the decision was rendered by an impartial, honest, and principled judge.  Even if the outcome is viewed as favorable, Americans are (rightfully) queasy if they believe that the decision was made with the judge’s personal or pecuniary gain in mind.

As the Federal Circuit readily acknowledged, in Beer a financial conflict of interest was unavoidable.  The legislation at issue affected the salary of every Article III judge, regardless of level of court or geographic placement.  The court (with the agreement of both sides) invoked the time-honored Rule of Necessity in concluding that it was appropriate for it to rule on the matter.  But the Rule of Necessity does not solve the neutrality problem.  It allows the court to rule when no other judges are available, but does not by itself lend sufficient legitimacy or credence to the ruling. 

Yet the Federal Circuit managed to minimize the neutrality problem and preserve its legitimacy – and it did so by employing three techniques that normally are thought to threaten legitimacy.  First, the court unapologetically stressed the importance of judicial independence, and tied stable and predictable salary increases to that value. This was a potentially risky move.  Notwithstanding general public support for an independent judiciary, naked assertions of judicial independence historically have backfired.  (Rose Bird’s failed bid for retention as California’s Chief Justice in 1986 is one notorious recent example.)   In Beer, however, the court was careful to describe judicial independence as a public good rather than a perk of wearing the robe.  Even though the judges faced a conflict of interest in the case before them, the larger value of judicial neutrality in the vast bulk of cases was better preserved through an independent (read: financially secure) judiciary.

Second, and somewhat counterintuitively, the court’s legitimacy was probably helped by the presence of a dissenting opinion.  Dissents are often thought to weaken the force or legitimacy of a majority opinion, either by pointing out flaws in the majority’s reasoning or by pressing the majority author to narrow the scope of a ruling or soften his or her rhetoric.  The presence of a vigorous dissent in Beer, however, sent the message that the court was aware of, and considered, a multiplicity of views – including views that contradicted the judges’ own pecuniary interest.  A unanimous opinion might well have sent the opposite message: that the court failed to critically examine all views before reaching its decision.  (As I explain here, this “groupthink” interpretation of a unanimous opinion likely contributed to the non-retention of three Iowa Supreme Court justices in 2010.)

Finally, Judge O’Malley’s substantial concurrence in Beer took a risk by eschewing a formalist/legalist approach in favor of a much more functional or pragmatic form of decisionmaking.  Judge O’Malley dedicated several pages to explaining how the relevant legislation had created vested expectations for Article III judges, and exploring the negative consequences of abandoning an expectations-based approach.   While legal pragmatism has its adherents, it is more susceptible to public concerns about court legitimacy precisely because it diverges from the comfortable formula of looking backward to precedent, and instead looks ahead to the potential consequences of a decision.  But here, too, the Federal Circuit balanced the pragmatic and legalistic approaches, emphasizing legalism in the majority opinion and pragmatism in the concurrence.  The result is a set of opinions that highlight many forms of legal reasoning and reinforce the message that the court addressed the issue thoughtfully and carefully.

The Federal Circuit obviously lacks the salience of the Supreme Court, yet public acceptance of its decisions is no less important.  Beer v. United States suggests, in a fascinating manner, how court legitimacy can be sustained by combining diverse components of legal justification in unexpected ways.

Posted by Jordan Singer on October 11, 2012 at 01:58 PM in Judicial Process, Law and Politics | Permalink


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Interesting that Judge Paez is the only active judge in the plaintiff group. U.W. Clemon resigned from the judiciary a couple of years ago and is no longer a judge at all.

Posted by: Jay | Oct 12, 2012 12:49:58 AM

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