• 04 June 2009

Judicial Independence in Excess: Reviving the Judicial Duty of the Supreme Court

Paul D. Carrington & Roger C. Cramton

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In 2006, Justices Sandra Day O’Connor and Stephen Breyer initiated a campaign to elevate public concern for the independence of our judiciary.  They were of course correct that judicial independence is indispensable to public trust in the integrity of our government.  Judges must be required and helped to maintain personal disinterest in the cases they decide.  Justices O’Connor and Breyer were also correct that, in recent years, the American public has manifested growing mistrust of its judiciary.  U.S. Senators as well as local politicians have expressed this sentiment and other Justices have observed it.  It was brightly displayed in the 2005 congressional effort to reverse the judicial judgment allowing termination of the life of Terri Schiavo, in the academic defense of that legislation, and also in the rhetoric of evangelist Pat Robertson, who reportedly said that liberal judges are a greater threat to America than a few bearded terrorists.  The mistrust of the judiciary is also highly visible in the vigor of controversies over the nomination and confirmation of Justices and judges, in serious proposals to remove judges who make decisions of which legislators disapprove, and in judicial politics at the state level, especially in the judicial election campaigns conducted in most states.

There is a measure of irony in the role of Supreme Court Justices as leaders of this cause for independence.  It is unlikely that any judge ever sat on a law court enjoying more independence than the present Justices themselves have enjoyed.  And their Court, while it coincidentally decides cases, is primarily engaged in making law to govern future events.  Seldom does it defer to a preexisting legal text.  In a society committed to the idea of democratic government, it is not easy to explain why such officers who are devoted to making new law should not be accountable to those whom they govern, especially when so many disapprove of the laws these Justice make.

Indeed, the present Court’s counter-democratic lawmaking decisions have evoked many of the reactions underlying the mistrust that the Justices now propose to correct.  While much of the unrest has been centered on the Court’s proclamation of a woman’s right to abort a fetus, the Court has in recent times made new law on many other important topics of deep concern to citizens, with minimal regard for preexisting constitutional or statutory texts.  A very recent example is the Court’s decision invalidating the gun control law enacted by the elected government of the District of Columbia.  Judges Richard Posner and Harvie Wilkinson have each recognized that decision as one no more rooted in a preexisting constitutional text than was the Court’s decision on a woman’s right to choose.  And its lack of a basis in a constitutional text makes it an offense to those many citizens who strongly favor gun control laws as indispensable to the establishment of a civil society, much as those committed to the right to life are offended by dismissal of their concerns as unworthy of constitutional consideration. 

Adding to the irony of their present expressions of concern for judicial independence, the Justices have indulged their own independence to make law seriously impairing the independence of many state court judges.  Through extraordinary extensions of the First Amendment, the Court has enabled interested groups to spend vast sums to support judges manifesting appropriate concern for their interests.  As (now Judge) Michael McConnell concluded: “The landscape of American politics today is not an encouraging sight. . . .  It is fair to say that the responsibility for a great deal of the political problem is to be laid at the feet of the Supreme Court’s well-meaning reforms from the early 1960s.”  Judicial elections have been a prominent feature of the landscape to which Judge McConnell referred.  It almost seemed in Republican Party v. White that the Court regarded the states’ schemes of judicial selection as so bad that they were unworthy of being protected from assaults on the independence of judges so selected.1

We recall that Chief Justice John Marshall emphasized the distinction between a law court and a legislature in his most celebrated opinion in Marbury v. Madison.  He disclaimed the power to make law except as required to decide those cases that he could not lawfully refuse to decide.  His opinion for the Court begged the public’s pardon for making a bold political decision that he and his fellow Justices were compelled to make in order to decide a case in which their jurisdiction had been irresistibly invoked.  That apology for judicial independence won in the profession and in the public a general acceptance of the idea that even constitutional law might be crafted by judges interpreting the preexisting text and adhering to precedent, at least when making decisions in cases they had an official duty to decide.

Congressional legislation allowing Justices to decide only those few legal and political issues that they choose to decide has brought renewed skepticism upon Chief Justice Marshall’s vision of the judicial junction.  That legislation has made Chief Justice Marshall’s explanation of his judicial role increasingly open to question by citizens made restless by proclamations of new law by judges having no accountability to those they govern.  The most important of these enactments was the Judiciary Act of 1925, then known as “the judges’ bill”; its leading opponent, the eminent Senator Thomas Walsh foresaw its transformative effect.  Despite his concern, the certiorari process has evolved so that the present federal law allows the Justices to decide only those few legal and political issues that they choose to decide.  It has thus allowed the Justices to liberate themselves from any duty to make decisions that they prefer not to make, whatever their unarticulated motives for avoiding that duty might be.  The Court hears only those grievances that four Justices for whatever reasons want to hear, but none that as many as three might favor hearing.  This current measure of supreme docket control has transformed the Court so that it is no longer a traditional law court structured to decide disputes presented by contesting parties, but is, as Judge Richard Posner has rightly described it, a “superlegislature.”

As a secondary consequence of the Court’s transformation, the U.S. courts of appeals have been similarly freed to imagine themselves as regional semi-superlegislatures, making “the law of the circuit.”  Important judicial duties have been increasingly delegated down the chain of command and the transparency of the judicial process has substantially declined at all levels.

Indeed, the Court as superlegislature, like other lawmaking bodies, has been keen to delegate onerous aspects of its lawmaking, leaving the Justices with ample free time for writing books and enabling some members of the Court to hold office long after they are able and willing to bear full responsibility for its work.  In recent years, the public has increasingly noticed the growing staffs of respectful young law clerks who bear much of the workload of choosing cases that are suitable vehicles for the new law that the Justices wish to make.  Many of those young law clerks have since matured into professors of constitutional law who tend to nourish an idolatry of the Court, one shared by many leaders of the profession.  Justice Rehnquist expressed that idolatry when he identified his Court as the “crown jewel” of our profession and our law.  As Solicitor General Seth Waxman has observed, the Supreme Court has emerged and regards itself as the “ascendant branch” of the national government.  It is, on reflection, not surprising if self-restraint, modesty, and respect for the moral and political preferences of less eminent folk such as those sitting in legislative bodies are traits in decline among members of such a professional elite.  Few informed readers will question Judge Posner’s observation that “[j]udicial modesty is not the order of the day in the Supreme Court.”

We here, with diffidence, propose to address this problem of judicial independence in excess by assigning veteran U.S. circuit court judges to replace some of the young law clerks and to empower those judges to independently designate a substantial fixed number of cases that the Justices would be obliged to decide each year in addition to those the Justices would remain free to select.  Our proposal is intended as a moderate and constructive response to the situation presently concerning Justices Breyer and O’Connor.  It would serve regularly to remind the Justices that elected legislators are our primary lawmakers and would moderate the office of Supreme Court Justice to a more human, less divine, scale. 

We would hope that it might help to induce the Court to accept a more modest political role, one more fitting to the constitutional schemes of separation of powers and federalism.  Our proposal might also help to restore the public sense that the Justices, and other law judges as well, are bound by the law they have been chosen to administer.

We are open to reconsideration of the details of our proposal.  We tentatively designate the new forum as the Certiorari Division of the Supreme Court.  Its judges would be circuit court judges with ten years of experience on the courts of appeals.2  The Division would hold quarterly meetings of panels of five to consider the pending petitions for certiorari.  Each quarter’s panel would be required and empowered by majority vote to grant at least twenty-five but not more than thirty petitions.  There would be no “opinions of the Division,” but a dissenting member of a panel might be permitted to explain to the Court why it should reverse the decision to deny a writ and give a case a full hearing.  The Court would remain free to grant a petition either before or after it was considered by the Division.  The difference would be that the Justices would be required to decide a hundred or more cases a year that were chosen not by themselves but by mature and experienced judges sharing a perspective that would be independent of the Justices’ personal wishes, ambitions, and political preferences.  The aim would be to integrate the Supreme Court more closely with the courts over which it presides and in that sense would diminish its independence.  It would enable the Justices again to invoke Chief Justice Marshall’s justification for the exercise of the extraordinary power of judicial review of legislation.

We propose to allow the Supreme Court to exercise its rulemaking power to govern the operation of its new Division.  It could express standards to control decisions granting writs, something it has not been able and willing to impose on its own screening decisions.  The Court might also provide a system for rotating experienced circuit judges through the panels of the Division.

The late Judge Richard Arnold observed that “the courts, like the rest of the government, depend on the consent of the governed,” and they need often to be reminded of that dependence.  Our present proposal is a response to his wise advice.  We would hope that, restored to the role of a law court, the Supreme Court might rediscover the virtues of humility and acquiescence that Jefferson Powell has identified as the moral dimensions of the Justices’ work.  And perhaps it might also serve to scale down the excessively elevated expectations of the legal profession observed by Robert Nagel.3

Despite these benefits, we anticipate that the Justices will not join in urging Congress to adopt our proposal.  Justice White to the contrary notwithstanding, we have been told that “the Justices are unanimous in their praise for the virtues of the discretionary court.”  But on that issue, we can respond with confidence that none of the Justices bring judicial independence to the question of whether others should have a say in defining their workload.  They are disqualified to opine on the subject.

We do not suppose that our magic wand has produced a panacea and we are fully aware that judicial law reform is very difficult to enact; legend has it that law reform is “no sport for the short-winded.”  Nevertheless, we advance this scheme for restructuring the certiorari process firm in the belief that legislation along these lines is much needed to restore and rehabilitate the judicial function of our most honored judges.  We foresee no risk of serious adverse consequences if Justices were required to decide more cases, and even some they might prefer not to decide.  This reduction in what we see as an excess of judicial independence might over time help to relieve the concerns voiced by Justices Breyer and O’Connor, among many others.dingbat



Copyright © 2009 Cornell Law Review.

Paul D. Carrington is Professor, Duke University School of Law.

Roger C. Cramton is Robert S. Stevens Professor of Law Emeritus, Cornell University Law School.

This Editorial is based on the following full-length Article:   Paul D. Carrington & Roger C. Cramton, Judicial Independence In Excess: Justices As Superlegislators, 94 CORNELL L. REV. 587 (2009). Click Here for the Full Version.

  1. 536 U.S. 765 (2002). See especially the concurring opinion of Justice O’Connor. Id. at 788.
  2. If there be objections to allowing lesser judges to exercise a measure of power in the name of the Supreme Court, the institution could be designated as the Certiorari Court. Others might then object that this offends the text of Article III providing that there shall be one Supreme Court. These constitutional concerns seem to the present authors not to require serious attention.

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