by Bruce Peabody (ed). Baltimore: The Johns Hopkins University Press, 2011. 352pp. Cloth $55.00. ISBN: 9780801897719. Paperback $28.00. ISBN: 0801897726.
Reviewed by Jack Wade Nowlin, The University of Mississippi School of Law. Email: jnowlin [at] olemiss.edu.
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 Judicial Independence examines these fundamental questions of law and politics, which arise with such force in court-centered constitutional systems. Bruce Peabody, editor of the volume, is a constitutional scholar at Fairleigh Dickinson University. He and his ten contributors have produced an engaging set of complementary essays examining the constitutional politics of the judiciary’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 judicial supremacy; the presidential manipulation of judicial power; institutional interdependence within the separation of powers; judicial power and public opinion; judicial elections and public perceptions of courts; judicial-legislative conflicts in common law nations; the “siege” on the Israeli Supreme Court; judicial self-regulation and judicial authority; and the implications of the credibility of judicial argument for judicial power.
Two underlying themes emerge from the essays. One theme concerns contemporary political responses 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 (pp.3-4). The motivating force behind this book is a recognition of the political significance of potential threats to judicial independence and the need for a careful scholarly examination of the issues they raise. Notably, this project requires realistically assessing the actual risks posed to courts and not exaggerating those risks or “condemn[ing] or dismiss[ing] criticisms of judges . . . without trying to understand in a sympathetic way [their] motivations” (p.4).
A second theme concerns the proper understanding of “judicial independence.” The traditional definition of judicial independence exemplified by Federalist No.78 is linked to the judiciary’s distinctive nature as an apolitical institution, its limited power as the “least dangerous branch” of government, and its special functions [*9] to preserve the Rule of Law and protect the rights of individuals. A basic theme of this book is that the traditional view should be reconsidered in light of new scholarship and the changing legal landscape. A revised account of judicial independence must recognize that courts are inevitably political institutions, often exercise substantial governmental power, and may have more limited and even quite different functions than the traditional 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 dynamics shaping congressional recourse to its “awesome formal powers” over the Court – including Congress’s arguable power to strip the Supreme Court of its appellate jurisdiction. Devins argues that it is unlikely Congress will actually deploy its more controversial powers to check the Court because of a combination of judicial sensitivity to congressional policy preferences, congressional sensitivity to the broad public support for judicial independence, and congressional indifference to the legislative branch’s own authority to interpret the Constitution. Thus the “new climate” of contemporary congressional sorties against the Court – including the introduction of jurisdiction-stripping bills – is largely rhetorical in nature, calculated to appeal to core political constituencies of members of Congress rather than to check judicial actors. Devins, however, does observe that “[w]ide-spread accusations of judicial activism” by elected officials and activists could “chip away” at the public’s support for judicial independence and change part of this basic political dynamic (p.66).
In “Institutional Interdependence and the Separation of Powers,” J. Mitchell Pickerill examines the U.S. Constitution’s separation of powers as a formalistic governmental structure that in practice involves separate institutions of government exercising shared powers “against [a] background of institutional interdependence, comity, and accommodation” (p.101). Pickerill embraces the revised view of “judicial independence” discussed above, a view which recognizes that “the U.S. judiciary is inherently connected to politics in many ways” and which does not aspire to an artificial and unattainable insulation of the courts from political influences, whether those influences arise from within the judicial process or from without (p.101). In Pickerill’s view, a proper recognition of the unavoidable political aspects of the exercise of the judicial power and the inevitability of institutional dialogue among the branches of government would temper both the critics of the Court who attack “judicial activism” and the critics of the critics who in turn rush to defend “judicial independence.” Pickerill concludes that the Court’s exercise of power in recent years has not been diminished by the rhetorical attacks of its critics.
In “Judicial Credibility,” Louis Fisher examines the important role that the quality of the Supreme Court’s legal reasoning can play in judicial-legislative relations. Fisher suggests that a better understanding of the proper bases for evaluating the persuasiveness of the Court’s legal arguments could canalize [*10] political criticism of the Court into the most productive channels and enable the Court to avoid the missteps most likely to provoke political backlash. Fisher argues that discussion of the Court’s justifications for its decisions too often centers on the question of the democratic legitimacy of its invalidation of legislative actions rather than on the exercise of the legal “reasoning process” that justifies the Court’s “existence and institutional independence” within the Constitution’s structural framework (p.227).
For instance, Fisher contends that the Court’s invalidation of the Religious Freedom Restoration Act in City of Boerne v. Flores is suspect not because the Court struck down a law passed by the democratically-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 its textually-express enforcement power under Section Five of the Fourteenth Amendment to enact a civil rights law establishing strict scrutiny for incidental burdens on the free exercise of religion. Congress, Justice Kennedy asserted, has the power to pass laws to enforce the Fourteenth Amendment (and thus the power to enforce the provisions of the Bill of Rights that the Amendment incorporates against the states – such as the First Amendment’s guarantee of the free exercise of religion); but Congress could not use that power to enact the Religious Freedom Restoration Act because the legislative branch has no power under Section Five to alter the meaning of the First Amendment, which the Court has concluded establishes only rational basis review for incidental burdens on religious freedom.
Congress, however, enacted the Religious Freedom Restoration Act to implement an interpretation of the First Amendment’s Free Exercise Clause, not as an attempt to alter its meaning; and Congress was in fact restoring by statute an interpretation that the Court itself had only recently abandoned. Thus the Court’s argument in Boerne is premised on the doubtful view that the congressional power under Section Five is not the power expressed in the text, to enforce the 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 be and whether or not it is correct. Fisher concludes that both the Court and its critics could profit from a healthy dialogue centered squarely on the quality of the Court’s reasoning and its foundation in law.
Bruce Peabody ends this valuable volume by reminding us that judicial independence cannot be understood in absolutist form as a prescription for insulating courts from appropriate political criticism and constitutional checks, but it does require that courts have the significant degree of political autonomy necessary to fulfill their role under the separation of powers. The key is holding the balance true. Of course, the question of the proper distribution of power between the judicial branch and the other institutions of government within the constitutional design will continue to produce disagreement and debate. With the publication of The Politics of Judicial Independence, those ongoing debates will be richer and better [*11] informed. This powerful collection of essays will find a welcome place on the shelf of any scholar interested in the judicial power.
City of Boerne v. Flores 521 U.S. 507 (1997).
© Copyright 2011 by the author, Jack Wade Nowlin.