Tuesday, May 03, 2005

The Judicial Power

I've been reading a lot in the blogosphere about the independence of the judiciary, and this has started me thinking on the subject (alas, instead of finishing my grading as I should be). Here are my rough thoughts. To the extent the U.S. has an independent judiciary, it is entirely constituted by the following elements:

* the inability of Congress to exercise judicial functions outside of the court of impeachment;
* a standing supreme court;
* tenure for good behavior;
* protection from diminished compensation.

That is pretty much all there is to it. Federal courts below the Supreme Court exist entirely as Congress sees fit. Appointments are entirely dependent on the other two branches. Everything else is pretty much an ad hoc matter of convenience, except for the four points above, which together are what Madison calls the independence of the courts of justice. In the ratification debate, Federalists and Anti-Federalists alike agreed that the last two were essential to a good judiciary. The Anti-Federalists worried that the first two, without further checks, would tend to judicial supremacy. Madison's response to this is not entirely heartening; it basically amounts to his usual view of checks and balances, which is a very nasty struggle and not the relatively benign thing we usually think of: on his view, the judiciary cannot establish such supremacy, because the legislature and executive can just ignore it if they decide to do so. But despite ratification, the Anti-Federalist worry on this point has never been quelled. It has been a reasonable worry from the beginning and, I imagine, will be a reasonable worry until the end of the Union. But so long as the four criteria above are met, we have as independent a judiciary as we have ever had.

Related to this, the other possible thing that could be meant when people talk about an independent judiciary is just a non-partisan judiciary, or a judiciary as non-partisan as possible (an independent-minded judiciary); which is necessary for the just fulfillment of the function of the judiciary. In this sense, it requires that the judiciary be forced to be independent; that is, it is part of our responsibility as citizens to be sharply vigilant on this front, since it will inevitably tend to become partisan. It's in this sense that I always say that we should be worried about the work of all the courts all the time -- nothing short of serious vigilance suffices. And this is why I'm also not bothered by charges of 'judicial activism'; they're often very garbled, but they always need to be seriously considered. Simply dismissing them is as utterly irresponsible as simply dismissing claims that the President is exceeding his authority; even if wrong we need to give such claims careful, serious, and public consideration. We can't afford not to do so, even when we agree with the result. If it is wrong, it needs to be clearly shown to be wrong. If there is the remotest possibility that it might be right, it needs to be investigated. Shrugging it off is dangerous. (One might add that getting hysterical about it, or jumping the gun about whether it is genuinely an abuse, is generally pointless; these charges are often merely partisan in nature, and are as likely to be false or confused as not, however passionately they are believed by those putting them forward. That we have a responsibility always to take the claims themselves seriously doesn't mean we have a responsibility to take seriously every shrill-voiced, label-slinging partisan putting them forward.)

This is also why I'm not particularly bothered about issues of filibustering, etc. Whether you agree with the filibustering in any particular case, there is nothing problematic about it. I'm also not particularly bothered by threats of changing the rules so that filibustering is impossible; whether it should be allowed or not is purely a matter for Congress to decide. Personally it seems to me more prudent to continue to allow filibustering, but nothing earth-shattering hinges on it. Regardless of the outcome, regardless of Congress's mode of proceeding, our responsibility for vigilance will be the same, and will not be over.

Likewise, I'm not particularly bothered by threats of impeachment on the part of legislators. I'm with Madison in viewing this as a natural part of checks and balances. One would hope, of course, it wouldn't come to that sort of fight; but the system is built to deal with such things. At least, it is on the supposition that the people retain a certain measure of vigilance and good sense. And now we come to the one thing that bothers me. It is partisan self-complacency, on every side, that worries me.

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