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 JudicialIndependence examines these fundamental questions of law and politics, which arise with suchforce in court-centered constitutional systems. Bruce Peabody, editor of the volume, is aconstitutional scholar at Fairleigh Dickinson University. He and his ten contributors haveproduced an engaging set of complementary essays examining the constitutional politics of thejudiciary’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 judicialsupremacy; the presidential manipulation of judicial power; institutional interdependence withinthe separation of powers; judicial power and public opinion; judicial elections and publicperceptions of courts; judicial-legislative conflicts in common law nations; the “siege” on theIsraeli Supreme Court; judicial self-regulation and judicial authority; and the implications of thecredibility of judicial argument for judicial power.Two underlying themes emerge from the essays. One theme concerns contemporary politicalresponses 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.The motivating force behind this book is a recognition of the political significance of potentialthreats to judicial independence and the need for a careful scholarly examination of the issuesthey raise. Notably, this project requires realistically assessing the actual risks posed to courtsand not exaggerating those risks or “condemn[ing] or dismiss[ing] criticisms of judges . . .without trying to understand in a sympathetic way [their] motivations” .A second theme concerns the proper understanding of “judicial independence.” The traditionaldefinition of judicial independence exemplified by Federalist No.78 is linked to the judiciary’sdistinctive nature as an apolitical institution, its limited power as the “least dangerous branch” ofgovernment, and its special functions to preserve the Rule of Law and protect the rights ofindividuals. A basic theme of this book is that the traditional view should be reconsidered in lightof new scholarship and the changing legal landscape. A revised account of judicial independencemust recognize that courts are inevitably political institutions, often exercise substantialgovernmental power, and may have more limited and even quite different functions than thetraditional 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 dynamicsshaping congressional recourse to its “awesome formal powers” over the Court – includingCongress’s arguable power to strip the Supreme Court of its appellate jurisdiction. Devins arguesthat it is unlikely Congress will actually deploy its more controversial powers to check the Courtbecause of a combination of judicial sensitivity to congressional policy preferences,congressional sensitivity to the broad public support for judicial independence, and congressionalindifference to the legislative branch’s own authority to interpret the Constitution. Thus the “newclimate” of contemporary congressional sorties against the Court – including the introduction ofjurisdiction-stripping bills – is largely rhetorical in nature, calculated to appeal to core politicalconstituencies of members of Congress rather than to check judicial actors. Devins, however,
does observe that “wide-spread accusations of judicial activism” by elected officials and activistscould “chip away” at the public’s support for judicial independence and change part of this basicpolitical dynamic.In “Institutional Interdependence and the Separation of Powers,” J. Mitchell Pickerill examinesthe U.S. Constitution’s separation of powers as a formalistic governmental structure that inpractice involves separate institutions of government exercising shared powers “againstbackground of institutional interdependence, comity, and accommodation” Pickerill embracesthe revised view of “judicial independence” discussed above, a view which recognizes that “theU.S. judiciary is inherently connected to politics in many ways” and which does not aspire to anartificial and unattainable insulation of the courts from political influences, whether thoseinfluences arise from within the judicial process or from without.In Pickerill’s view, a properrecognition of the unavoidable political aspects of the exercise of the judicial power and theinevitability of institutional dialogue among the branches of government would temper both thecritics of the Court who attack “judicial activism” and the critics of the critics who in turn rush todefend “judicial independence.” Pickerill concludes that the Court’s exercise of power in recentyears has not been diminished by the rhetorical attacks of its critics.In “Judicial Credibility,” Louis Fisher examines the important role that the quality of theSupreme Court’s legal reasoning can play in judicial-legislative relations. Fisher suggests that abetter understanding of the proper bases for evaluating the persuasiveness of the Court’s legalarguments could canalize political criticism of the Court into the most productive channels andenable the Court to avoid the missteps most likely to provoke political backlash. Fisher arguesthat discussion of the Court’s justifications for its decisions too often centers on the question ofthe democratic legitimacy of its invalidation of legislative actions rather than on the exercise ofthe legal “reasoning process” that justifies the Court’s “existence and institutional independence”within the Constitution’s structural framework.For instance, Fisher contends that the Court’s invalidation of the Religious Freedom RestorationAct in City of Flores v. Boerne is suspect not because the Court struck down a law passed by thedemocratically-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 itstextually-express enforcement power under Section Five of the Fourteenth Amendment to enacta civil rights law establishing strict scrutiny for incidental burdens on the free exercise ofreligion. Congress, Justice Kennedy asserted, has the power to pass laws to enforce theFourteenth Amendment (and thus the power to enforce the provisions of the Bill of Rights thatthe Amendment incorporates against the states – such as the First Amendment’s guarantee of thefree exercise of religion); but Congress could not use that power to enact the Religious FreedomRestoration Act because the legislative branch has no power under Section Five to alter themeaning of the First Amendment, which the Court has concluded establishes only rational basisreview for incidental burdens on religious freedom.Congress, however, enacted the Religious Freedom Restoration Act to implement aninterpretation of the First Amendment’s Free Exercise Clause, not as an attempt to alter itsmeaning; and Congress was in fact restoring by statute an interpretation that the Court itself hadonly recently abandoned. Thus the Court’s argument in Boerne is premised on the doubtful viewthat the congressional power under Section Five is not the power expressed in the text, to enforcethe 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 beand whether or not it is correct. Fisher concludes that both the Court and its critics could profitfrom a healthy dialogue centered squarely on the quality of the Court’s reasoning and itsfoundation in law.Bruce Peabody ends this valuable volume by reminding us that judicial independence cannot beunderstood in absolutist form as a prescription for insulating courts from appropriate politicalcriticism and constitutional checks, but it does require that courts have the significant degree ofpolitical autonomy necessary to fulfill their role under the separation of powers. The key isholding the balance true. Of course, the question of the proper distribution of power between thejudicial branch and the other institutions of government within the constitutional design willcontinue to produce disagreement and debate. With the publication of The Politics of JudicialIndependence, those ongoing debates will be richer and better informed. This powerful collectionof essays will find a welcome place on the shelf of any scholar interested in the judicial power.