History, Politics and Judicial Independence

History, Politics and Judicial Independence

Description

There is a long-standing debate, almost tedious in its familiarity, about the place of the judiciary in a constitutional democracy. On one side stands “independence.” Independence represents the aspiration to the rule of law, the notion that adjudication should remain—almost uniquely—separate from politics. On the other side stands “accountability.” Accountability represents the aspiration to self-governance, the sense that in a well-functioning democracy no institution should be beyond politics. The long-standing nature of the debate is puzzling, however, because it rests on a false dichotomy. If a democracy is well functioning, no institution is truly independent. Every institution remains accountable; every institution can be brought to heel. In some instances this can happen through ordinary legislation. In others it may require constitutional amendment. But rare is the instance in a constitutional democracy when an institution remains entirely beyond the ability of the people to change it. Judicial independence, then, necessarily is a product—at least in part—of forbearance. Force and money are strong allies, but judiciaries, in the now hackneyed phrase, lack both the purse and the sword. A judiciary possesses only voice, and voice alone is not going to be enough to protect a judiciary. Judiciaries are independent because we wish them to be. The pertinent questions concern why this forbearance arises, and how it is maintained. Both are important questions. The first is important because one point of the judiciary's vulnerability is at its conception. As the judiciary begins its work, it will acquire enemies. How do the roots of independence grow deep enough in early years to protect the judiciary from being toppled by those enemies? The second question is no less important. As the judiciary ages and its roots grow deep, the more isolated it might become from the politics that nurture and protect other institutions. Isolation increases the vulnerability of a judiciary to being toppled by the winds of popular passion. Relying on the tools of history and political economy, this paper studies the establishment and maintenance of judicial independence. Both are of deep interest around the globe. The focus here is on the judiciary of the United States, and particularly the national, or federal, judiciary. Although there are undoubtedly aspects of the United States' experience that are culturally or politically contingent, the argument here about the political economy of maintaining an “independent” judiciary is intended to have broader application. There is a lesson here, often overlooked, that it is more difficult to establish an independent judiciary than it is to maintain one. The forces that go into creating a relatively independent judiciary are complex and difficult to capture. But once it is up and running, the inertia of politics serves to protect the judiciary. The reason is a familiar one in the political economy of legislation: it is easier to prevent enactment of a bill than to get one enacted. Virtually every meaningful attack on the independence of the federal judiciary requires a legislative or super-legislative effort. Thus, ordinary politics may protect a judiciary that has obtained its independence. There is a corollary to this lesson, although it rests as much on intuition as clear experience. The more independent the judges will be from politics over time may bear upon how difficult it is to establish independence in the first place. To the extent a judiciary is granted great autonomy as a formal matter, there may be reluctance to accord it supremacy and the norms or customs of independence may not grow up around it. By the same token, if a judiciary is created such that formal mechanisms maintain the accountability of judges, then—paradoxically, perhaps—there may be a greater willingness to adhere to judicial decisions. After all, if the decisions are problematic over the long haul, there is a solution: change the judges. It is perhaps no accident then that many emerging democracies have decided not to emulate the life tenure of the United States' federal judiciary. The federal judiciary of the United States stands as a model of what institution-builders elsewhere often hope to achieve. Yet, by and large, they omit the one feature of the system—life tenure—that is often considered within the United States as the greatest protection of the independence of the federal judiciary. As will be apparent, there may be wisdom in this. Ultimately, what this paper makes clear is that politics can threaten a judiciary, but can protect it as well. Judicial institutions are never truly independent. They are within politics, but not of politics. And the politics that can crush judicial independence also can serve to nurture and safeguard it.

Source Publication

Judicial Integrity

Source Editors/Authors

András Sajó, Lorri Rutt Bentch

Publication Date

2004

History, Politics and Judicial Independence

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