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zt12452
Threats to Judicial Independence, Real and
Imagined
VIET D. DINH*
ABSTRACT
Public criticism of the federal courts is nothing new. Since the beginning of the
Republic, through calls to impeach Chief Justice Earl Warren, to the present day,
politicians and populace have attacked judicial opinions and decried judicial activism. Bench and, for the most part, bar have responded by stressing the need to
respect judicial independence. Professor Viet D. Dinh examines criticisms of the
Judiciary and their effect on judicial independence. Surveying the form and substance of judicial criticisms—including controversies over judicial confirmation,
jurisdiction stripping, use of foreign law sources, and the like—Dinh makes several
observations. First, judicial independence must be accompanied by judicial restraint, lest judges usurp the policymaking role of the political branches. Second,
popular reactions against judicial activism may enhance a more robust form of
judicial independence by safeguarding the proper role of the Judiciary. Third,
sustained criticism by political elites—activists, media, and politicians—may threaten
both judicial independence and restraint by conditioning the environment in which
career-minded judges would tailor their rulings to the prevailing view of the elites.
Dinh concludes by calling for lowering the heat in the judicial appointment and
confirmation process. Although Presidents and Senators should ask would-be judges
about their judicial philosophy and interpretive methodology, attempts to glean a
nominee’s preferred outcomes in particular cases or views on specific policy issues
threaten both judicial independence and judicial restraint.
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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I. THE RELATIONSHIP BETWEEN AN INDEPENDENT JUDICIARY AND
JUDICIAL RESTRAINT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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II. FORMS OF JUDICIAL CRITICISM, PAST AND PRESENT . . . . . . . . . . . . .
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A.
JURISDICTION STRIPPING
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B.
THREATS OF IMPEACHMENT AND POLITICAL INTIMIDATION
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C.
APPOINTMENTS AND SENATE CONFIRMATIONS
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III. SUBSTANCE OF JUDICIAL CRITICISM . . . . . . . . . . . . . . . . . . . . . . . .
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A.
JUDICIAL ACTIVISM
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B.
USE OF FOREIGN LAW IN DECISIONS
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* Professor of Law, Georgetown University Law Center; A.B., J.D., Harvard University. © 2007,
Viet D. Dinh.
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CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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CAREER JUDGES
INTRODUCTION
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The response to the landmark Supreme Court decisions of the 1950s, in
particular those involving desegregation and church-state relations, was a nationwide movement to remove Chief Justice Warren from the bench.1 Billboards
around the country proclaimed their aim: “Impeach Earl Warren.”2 Petitions
circulated, and over one million Americans signed their names in support of the
impeachment effort.3 Some even proposed that Warren be hanged.4
Public criticism of the federal courts is nothing new. For as long as there has
been a Federal Judiciary, federal judges have been blasted for purportedly
overstepping their bounds. Yet, by and large, the judges have not abdicated their
duty to invalidate laws that they believe offend the Constitution. Public criticism of judicial decisions does not, by itself, necessarily threaten the independence of the Judiciary; in fact, under some circumstances, such critiques
paradoxically can help bring about a more robust form of judicial independence.
This Essay examines modern criticisms of the Judiciary and the effect such
criticisms have on the independence of the courts. Part I examines the tension
between—and the complementary nature of—the idea of an independent judicial branch of government and a judiciary that restrains itself to its proper
functions. Part II surveys current measures used to criticize judges and compares them to historical criticisms of the Judiciary, observing that broadsides
against the courts have not jeopardized judicial independence in the past. Part
III explores some of the practices for which members of the Judiciary are
commonly criticized, and the effects such criticisms have on the independence
of the judicial branch. Three such practices are judicial activism, use of foreign
law in court decisions, and “career judging” (that is, deciding cases with an eye
toward future promotion). These practices may both threaten judicial independence and offend judicial restraint to the extent that they empower judges to
transgress their proper judicial role.
1. Kelly A. MacGrady & John W. Van Doren, AALS Constitutional Law Panel on Brown, Another
Council of Nicaea?, 35 AKRON L. REV. 371, 373 (2002) (citing ED CRAY, CHIEF JUSTICE: A BIOGRAPHY OF
EARL WARREN 389–92 (1997) (describing how the desegregation decision fueled the impeachment
move)).
2. See Charles J. Ogletree, Jr., Judicial Activism or Judicial Necessity: The D.C. District Court’s
Criminal Justice Legacy, 90 GEO. L.J. 685, 693 (2002) (citing Kermit L. Hall, The Warren Court:
Yesterday, Today, and Tomorrow, 28 IND. L. REV. 309, 326 (1995) (footnote omitted)).
3. See Robert L. Brown, From Earl Warren to Wendell Griffen: A Study of Judicial Intimidation and
Judicial Self-Restraint, 28 U. ARK. LITTLE ROCK L. REV. 1, 4 (2005).
4. Ogletree, supra note 2, at 693 (citing Hall, supra note 2, at 326).
Orig. Op.
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I. THE RELATIONSHIP BETWEEN AN INDEPENDENT JUDICIARY AND
JUDICIAL RESTRAINT
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Under our constitutional system, the Federal Judiciary wields carefully circumscribed powers, but within its proper sphere, judicial authority is final and
therefore absolute. Among other limitations, federal judges may not issue
advisory opinions5 and have no authority to engage in policymaking.6 But while
the Constitution rules certain functions out of bounds for the courts, it also
insulates federal judges from the pressures that can be brought to bear in
response to an unpopular, but legally required, decision. Article III guarantees
that federal judges shall hold their offices for life with continued “good Behaviour.”7
By setting up an independent judiciary, the Framers intended to prevent the
other branches of government, or the people themselves, from undermining the
Judiciary’s decisional impartiality.8 That impartiality is “essential to the preservation of the rights of every individual, his life, property, and character, that there
be an impartial interpretation of the laws, and administration of justice.”9 The
insulation of judges from popular pressures ensures that all citizens receive
equal justice under the law, and prevents judges from being influenced by the
whims of the public (or a powerful faction) when they decide cases. In The
Federalist No. 78, Alexander Hamilton emphasized:
This independence of the judges is equally requisite to guard the constitution and the rights of individuals from the effects of those ill humors which
the arts of designing men, or the influence of particular conjectures, sometimes disseminate among the people themselves, and which, though they
speedily give place to better information and more deliberate reflection, have
a tendency in the mean time to occasion dangerous innovations in the
government, and serious oppressions of the minor party in the community.10
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The way to achieve this impartiality—to free judges to decide cases based on
what the law actually requires, and on nothing else—is to ensure that the
Judiciary is independent, or, put differently, not to subject judges to reprisals for
their decisions on the bench.
But judicial independence is not an absolute or singular value defining our
courts. The principle of judicial restraint is equally important—and it is inextricably linked to judicial independence. At one level, the tension between the two
5. See U.S. CONST. art. III, § 2; id. amend. XI.
6. See id. art. I, § 1 (“All legislative Powers herein granted shall be vested in a Congress of the
United States . . . .” (emphasis added)).
7. Id. art. III, § 1.
8. THE FEDERALIST NO. 78 (Alexander Hamilton).
9. Peter D. Webster, Who Needs an Independent Judiciary?, FLA. B.J., Feb. 2004, at 24, 24–25
(discussing the creation of and need for an independent judiciary).
10. THE FEDERALIST NO. 78, at 469 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
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seems inescapable. There is, however, an important sense in which an independent judiciary and judicial restraint are flip sides of the same coin: Both aim at
minimizing the influence of extraneous factors on judicial decisionmaking. A
judge must not decide a case with an eye toward public approbation, because
whether a particular result is popular is irrelevant to whether it is legally sound.
In the same way, a judge must not consult his own policy preferences (or those
of whatever moral philosopher happens to be au courant at the time) when
construing the Constitution or a statute, because those personal views are
immaterial to what the law, fairly construed, actually provides. Judicial independence and judicial restraint thus work together hand-in-glove to channel judges’
attention to the factors that are actually relevant to the proper resolution of
cases.
Much is at stake if the Judiciary becomes too independent or too restrained:
individual rights and the proper functioning of the government. Those who
criticize courts advocate more restraint to ensure that judges do not exceed the
scope of their powers. But at the same time, it must be stressed—as Justice
Sandra Day O’Connor did in a recent speech—that a court’s ability to be
effective depends “on the notion that we won’t be subject to retaliation for our
judicial acts.”11 The upside of judicial independence, then, is that it insulates
judges who faithfully apply the law (albeit in unpopular ways); the downside is
that judicial independence insulates judges who use their unaccountability to
shape the law in favor of their own preferred policies.12
II. FORMS OF JUDICIAL CRITICISM, PAST AND PRESENT
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Criticism of courts comes in many forms, and recent years have witnessed
many, if not all, of the variations. But if we compare the nature and intensity of
today’s criticisms with the vitriol directed at judges in years past, it becomes
apparent that they are not unique. Indeed, public critiques of federal judges have
been commonplace throughout American history and, when done thoughtfully
and honestly, they contribute both to a healthy democracy and to judicial
independence.13
A. JURISDICTION STRIPPING
Congress has attempted to enact legislation that restricts or eliminates the
jurisdiction of federal courts to hear certain types of cases. Congress’s power to
do so derives from the Exceptions Clause, which provides that “the supreme
Court shall have appellate Jurisdiction, both as to Law and Fact, with such
11. Editorial, Injudicious Intimidation, DETROIT FREE PRESS, Apr. 16, 2006, at EDP2.
12. See Michael Richard Dimino, Sr., Counter-Majoritarian Power and Judges’ Political Speech, 58
FLA. L. REV. 53, 55 (2006).
13. See, e.g., Melvin B. Lewis, Criticism of Court Challenged, CHI. TRIB., Oct. 16, 1985, at C18.
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Exceptions, and under such Regulations as the Congress shall make.”14 The best
known of these limitations concerns review by federal courts of prior adjudications by other bodies, such as administrative agencies or state courts. In the
early 1990s, the public (and some members of Congress) grew increasingly
frustrated with what was perceived as federal courts’ penchant for allowing state
convicts to relitigate their cases in the federal system. In response to these and
other concerns (including fears about terrorism), Congress in 1996 enacted the
Antiterrorism and Effective Death Penalty Act (AEDPA).15 Among other things,
AEDPA limits the ability of federal courts to consider habeas challenges to state
court criminal convictions.16
Similar concerns led Congress (also in 1996) to enact the Illegal Immigration
Reform and Immigrant Responsibility Act (IIRIRA).17 IIRIRA prevents federal
courts from reviewing a final order of the Immigration and Naturalization
Service to deport a person with a criminal record and expands the class of
crimes that constitute an aggravated felony, including terrorism.18 More recently, in December 2005—just months before the Supreme Court was scheduled to hear the Hamdan v. Rumsfeld19—Congress passed, and the President
signed, the Detainee Treatment Act,20 which purported to remove from the
federal courts jurisdiction to hear challenges brought by suspected terrorists to
their detention and treatment at Guantanamo Bay.21
Other proposals are currently before Congress to remove federal court jurisdiction to review the constitutionality of hot-button issues, like abortion.22 The
Marriage Protection Act of 200523 intends to strip federal courts of jurisdiction
to consider the constitutionality of the Defense of Marriage Act, which declares
that no state shall be required legally to recognize same-sex marriages performed in another state.24 Other proposals aim to deny courts jurisdiction to
14. U.S. CONST. art. III, § 2; see, e.g., Herbert Wechsler, The Courts and the Constitution, 65 COLUM.
L. REV. 1001, 1005–06 (1965) (arguing that the Constitution was drafted so as to ensure that Congress
could periodically decide how far within the constitutionally permissible boundaries federal-court
power should extend).
15. Pub. L. No. 104-132, 110 Stat. 1214 (1996) (codified as amended in scattered sections of 8, 18,
22, 28, 40, and 42 U.S.C.).
16. See Anthony Lewis, An Independent Judiciary, 43 ST. LOUIS U. L.J. 285, 290 (1999).
17. Pub. L. No. 104-208, 110 Stat. 3009 (1996) (codified as amended in scattered sections of 8 and
18 U.S.C.).
18. See Lewis, supra note 16, at 290; see also Collin O’Connor Udell, Parading the Saurian Tail:
Projection, Jung, and the Law, 42 ARIZ. L. REV. 731, 758 (2000).
19. 126 S. Ct. 2749 (2006).
20. Pub. L. No. 109-148, §§ 1001–1006, 119 Stat. 2680, 2739–44 (2005).
21. See Linda Greenhouse, Sect Allowed To Import its Hallucinogenic Tea, N.Y. TIMES, Feb. 22,
2006, at A14.
22. See id. (discussing new proposals to strip the constitutional power of the federal courts); see also
David G. Savage, Rehnquist Sees Threat to Judiciary, L.A. TIMES, Jan. 1, 2005, at A1.
23. H.R. 1100, 109th Cong. (2005).
24. Id.; see also Defense of Marriage Act, 28 U.S.C. § 1738C (2000); James P. George, Access to
Justice, Costs, and Legal Aid, 54 AM. J. COMP. L. 293, 315 n.5 (2006).
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assess the constitutionality of the Pledge of Allegiance25 and public displays of
the Ten Commandments.26 (It is far from clear that any of these proposals will
actually be enacted. The Congressional Record is littered with proposed limita
tions on courts’ jurisdiction that died on the vine.)27
Jurisdiction-stripping is not a new phenomenon.28 Congress has exercised the
authority to strip federal courts of jurisdiction for centuries, and judicial independence has not suffered measurably for it.29 The Supreme Court’s decision in Ex
parte McCardle affirmed the power of Congress to restrict the jurisdiction of the
Article III courts, upholding a law that removed from the Court’s jurisdiction
any cases appealed from circuit courts under the Act of 1867.30 In fact, like the
Detainee Treatment Act, which was passed while Hamdan was pending, the law
at issue in McCardle was enacted while the McCardle case was pending before
the Supreme Court.
B. THREATS OF IMPEACHMENT AND POLITICAL INTIMIDATION
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Criticism of judges by politicians is not new, either, but its frequency has
picked up in recent decades. While virtually everyone agrees that federal judges
may be impeached if they commit crimes,31 in the modern era, threats of
impeachment often follow unpopular rulings. In 1996, Judge Harold Baer, a
federal district judge in New York, ordered the suppression of evidence found
during a traffic stop in New York City’s Washington Heights neighborhood. The
judge reasoned that, in that neighborhood, it was reasonable for people to fear
the police and so the defendants’ running did not give the officers a reasonable
basis for searching the car.32 Judge Baer’s ruling was immediately denounced,
and by members of both political parties. The Clinton Administration called for
the judge’s resignation, while some congressional Republicans proposed impeachment.33 Several weeks later, Judge Baer reconsidered the case and reversed his
25. Pledge Protection Act of 2004, H.R. 2028, 108th Cong. (2004).
26. Ten Commandments Defense Act of 2003, H.R. 2045, 108th Cong. (2003).
27. See David Cole, Jurisdiction and Liberty: Habeas Corpus and Due Process as Limits on
Congress’s Control of Federal Jurisdiction, 86 GEO. L.J. 2481, 2482 (1998) (“In the 1970s and 1980s,
Congress repeatedly entertained proposals to restrict the jurisdiction of the courts over controversial
issues such as school busing, abortion, and prayer in schools, but none of these proposals passed, and so
the constitutional issue passed.”).
28. See Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869).
29. Clifford W. Taylor, No: Protesting Perceived Judicial Excesses is Healthy for System of
Government, DETROIT FREE PRESS, Apr. 16, 2006, at 1E.
30. Ex parte McCardle, 74 U.S. (7 Wall.) at 515.
31. See Nixon v. United States, 506 U.S. 224 (1993). A federal judge who was convicted at a
criminal trial of making false statements before a federal grand jury sought judicial review of his
removal from office. He claimed that the Senate failed to “try” him within the meaning of the
impeachment clause. See U.S. CONST. art. I, § 3. The Supreme Court held that Nixon’s challenge
presented a nonjusticiable political question because the impeachment clause also granted the Senate
“sole” power to try impeachments. See Nixon, 506 U.S. at 232. As such, judicial review of Senatorial
impeachment proceedings is inappropriate.
32. Don Van Natta, Jr., Judges Defend a Colleague From Attacks, N.Y. TIMES, Mar. 29, 1996, at B1.
33. Id.
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prior ruling.34
More recently, former House Majority Leader Tom DeLay advocated impeachment investigations of several sitting judges such that Congress could be “a
check on the court system.”35 The House Judiciary Committee has considered
creating an office of inspector general for the Judiciary to investigate allegations
of judicial misconduct.36 The goal of such proceedings is not necessarily to
actually remove the judges from the bench. Rather, threats of impeachment can
serve as a tool of intimidation, having a chilling effect that encourages judges to
look over their shoulders when deciding cases.
Although the volume of criticisms may be louder now than in the past, the
fact is that federal judges have endured threats of impeachment for years.
Perhaps the most famous example dates from the earliest days of the Republic.
In 1805, President Thomas Jefferson, a Democratic-Republican, supported an
effort to impeach Justice Samuel Chase because he objected to Chase’s Federalist jurisprudence.37 The script will be familiar to any observer of today’s debates
over the conduct of the courts: Jefferson attacked Chase for what he characterized as judicial rulings that went beyond what was required law; for his part,
Chase saw the attacks as an attempt to undermine judicial independence.38 In
the early twentieth century, President Theodore Roosevelt often criticized rulings of the Federal Judiciary that blocked his preferred social reform legislation.39 Roosevelt’s platform as a Progressive Party candidate in 1912 advocated
the recall of unpopular judicial opinions and judges by popular vote.40 And, of
course, some who objected to the Warren Court’s rulings launched an advertising campaign, whose most conspicuous features were the “Impeach Earl Warren” billboards, in an effort to influence the Supreme Court Justices.41 Federal
judges have endured these criticisms with scant negative consequences for their
independence, and there is no reason to suppose that today’s threats will prove
any more effective.
C. APPOINTMENTS AND SENATE CONFIRMATIONS
The Senate has always closely examined nominees to the federal bench, but
recently even closer attention has been paid to prospective judges’ ideological
leanings. Historically, the Senate’s scrutiny has not been strictly limited to
34. See United States v. Bayless, 913 F. Supp. 232 (S.D.N.Y.), overruled by 921 F. Supp. 211
(S.D.N.Y. 1996); see also Robert Gearty & Tracy Connor, Judge: Keep Cons Cool, DAILY NEWS (N.Y.),
July 28, 2004, at 10.
35. See Lewis, supra note 16, at 292 (citing 143 CONG. REC. H2, 654 (daily ed. May 14, 1997)).
36. Bill Hord, Ginsburg: Judicial Independence Challenged, OMAHA WORLD-HERALD, Apr. 8, 2006,
at 3B; see also Editorial, A Blind Eye on Judges, N.Y. TIMES, May 22, 2006, at A20.
37. Stephen B. Burbank, The Past and Present of Judicial Independence, 80 JUDICATURE 117, 118
(1996).
38. Id.
39. Michael R. Belknap, From Pound to Harley: The Founding of AJS, 72 JUDICATURE 78, 81 (1988).
40. Id.
41. Burbank, supra note 37, at 118–19.
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nominees’ professional qualifications, but has sometimes also included some
inquiry into their general judicial philosophies. For years, the approach was to
wave nominees through without much, if any, ideological examination. Until
the 1930s, presidential judicial nominees were not even invited to testify before
the Senate Judiciary Committee, and it was not until 1955 that testimony before
the Senate was consistently requested.42 Prior to that point, nominees were not
questioned about their positions on substantive legal issues.43 Still, for much of
the latter half of the twentieth century, candidate questioning was mostly
ceremonial, unless a particular nominee was controversial. Even as recently as
Justice Ruth Bader Ginsburg’s hearings, the nomination process was generally
quiet; Ginsburg received careful scrutiny, but was not subjected to overly
intrusive questioning.44 Indeed, at one point, Senator Strom Thurmond—who
did not hail from the nominating President’s political party—even encouraged
Ginsburg to decline to answer any questions she believed could come before her
on the Court: “Well, you don’t have to answer it, then, if you feel that you
shouldn’t.”45
Recent years have seen the Senate demand much more from judicial
nominees—the Senate sometimes seeks assurances (implied, if not explicit)
as to how nominees would rule in particular cases. Usually this takes the
form of questions about the nominee’s personal views on controversial
issues of the day: abortion, affirmative action, the death penalty, the rights
of criminal defendants, and other topics. This growing trend dates at least
from the Robert Bork and Clarence Thomas hearings. Robert Bork was
questioned regarding how his judicial philosophy would affect his interpretation of key issues such as right to privacy, civil rights, gender discrimination, criminal procedure, separation of powers, antitrust law, and labor
relations.46 He also fielded questions about his personal views on such
controversial Supreme Court decisions as Griswold v. Connecticut,47 Roe v.
Wade,48 and Brandenburg v. Ohio.49
This growing trend also was evident at the recent Roberts and Alito hearings.
During Chief Justice John Roberts’s confirmation hearings, one Senator asserted
that Roberts’s lack of a paper trail as a judge required him to divulge his views
42. See id.; William G. Ross, The Questioning of Supreme Court Nominees at Senate Confirmation
Hearings: Proposals for Accommodating the Needs of the Senate and Ameliorating the Fears of the
Nominees, 62 TUL. L. REV. 109, 116 (1987).
43. Ross, supra note 42, at 119.
44. William G. Ross, The Supreme Court Appointment Process: A Search for Synthesis, 57 ALB. L.
REV. 993, 994–95 (1994).
45. Nomination of Ruth Bader Ginsburg, To Be Associate Justice of the Supreme Court of the United
States: Hearings Before the Comm. on the Judiciary, United States Senate, 103d Cong. 145 (1994).
46. Id.; see generally Nomination of Robert H. Bork To Be Associate Justice of the Supreme Court of
the United States: Hearings Before the Comm. on the Judiciary, United States Senate, 100th Cong.
(1989).
47. 381 U.S. 479 (1965).
48. 410 U.S. 113 (1973).
49. 393 U.S. 948 (1969).
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on critical issues.50 But when Justice Samuel Alito came before the Senate
Judiciary Committee, the same Senator argued that Alito’s sixteen-year record
as a judge, and his correspondingly lengthy paper trail, necessitated that he be
even more responsive than Roberts was.51 When Roberts and Alito declined to
tell how they would rule on particular issues, the Senator accused them of
dodging.52 Another member of the Senate Judiciary Committee asked Alito’s
opinion on Bush v. Gore,53 characterizing the case as a “great example of
judicial activism.”54 Both justices were questioned at length on Roe v. Wade.55
Nor is such pointed questioning limited to nominees to the highest court.
Probing questions also are asked increasingly of appellate nominees.56 Nominees are required to respond to a variety of inquiries ranging from their opinions
on previous court decisions to whether they would adhere to particular precedents.57 Nominees also are asked their personal opinions on hot social and
political issues and are queried about their opinions on issues they might need to
adjudicate in the future.58
This increased ideological scrutiny of nominees is problematic from the
standpoints of both judicial independence and judicial restraint. It certainly
is proper for Senators to inquire about nominees’ general judicial philosophies and interpretive methodologies. But asking about a nominee’s preferred outcomes in particular cases—or trying to glean them from the
nominee’s views on prior precedents—may pose a threat to the proper
functioning of the Federal Judiciary. The danger is that judges will come to
be agents of the Senate’s policy preferences, and that is no more acceptable
than that judges should become the agents of the President’s policy preferences. “By demanding to know in advance how a particular nominee will
rule in a given kind of case, the political branches are exerting precisely the
sort of direct control over the Judiciary that Hamilton and the other Framers
sought to avoid with the creation of a separate and distinct third branch.”59
The Supreme Court seldom finds itself in unanimity on controversial legal
questions, but all nine members of the Court agree about the dangers of judges
precommitting themselves to particular outcomes. In the 2002 case of Republi50. Jonah Goldberg, Senate “Show Trial” is Product of a Too-Powerful Court, USA TODAY, Jan. 11,
2006, at 11A.
51. Id.
52. See Marcia Davis, For Democrats, A Most Tender Roast of Alito, WASH. POST, Jan. 11, 2006, at
C1.
53. 531 U.S. 98 (2000).
54. Id.
55. See, e.g., “Private Religious Speech Can’t Be Discriminated Against,” N.Y. TIMES, Jan. 12, 2006,
at A26.
56. See William G. Ross, The Questioning of Lower Federal Court Nominees During the Senate
Confirmation Process, 10 WM. & MARY BILL RTS. J. 119, 119–20 (2001).
57. See generally id.
58. See generally id.
59. Diarmuid F. O’Scannlain, Today’s Senate Confirmation Battles and the Role of the Federal
Judiciary, 27 HARV. J.L. & PUB. POL’Y 169, 174 (2003).
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can Party of Minnesota v. White,60 the Court struck down Minnesota’s “announce clause,” which prohibited candidates for elected judicial office from
publicizing their views on disputed legal or political issues.61 The dissent
acknowledged that, “[i]n the context of the federal system, how a prospective
nominee for the bench would resolve particular contentious issues would certainly be ‘of interest’ to the President and the Senate . . . . But in accord with a
longstanding norm, every Member of this Court declined to furnish such
information to the Senate, and presumably to the President as well.”62 That
“longstanding norm” was “crucial to the health of the Federal Judiciary.”63 The
majority did not dispute this, and only held that judges who wish to share their
legal views cannot be forbidden from doing so: “Nor do we assert that candidates for judicial office should be compelled to announce their views on
disputed legal issues.”64
III. SUBSTANCE OF JUDICIAL CRITICISM
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Recently the Federal Judiciary has been met with mounting criticism and
a public that is increasingly skeptical of courts’ ability—and even their
willingness—to do their job properly.65 Critics worry that the Judiciary, the
least accountable branch, is abusing its authority and exercising undue
influence over the nation’s political policy. In particular, critics see abuses of
courts’ authority in what is loosely known as “judicial activism,” in the use
of foreign law when interpreting American laws, and in “career judging.”
Calling the Judiciary to task for these practices is not only not a threat to the
courts’ independence, it can be an important part of a robust democracy.
Equally importantly, it can be an important part of safeguarding judicial
independence; criticism can help ensure that judges perform only that role
which has been delegated to them and consider law, not public opinion,
when deciding cases.
A. JUDICIAL ACTIVISM
The perennial criticism of judges is that they engage in judicial activism.
Everyone seems opposed to judicial activism, yet no one agrees what it means.
Some have branded as activist the Supreme Court’s recent rulings on partial-
60. 536 U.S. 765 (2002).
61. Id. at 788.
62. Id. at 807 n.1 (Ginsburg, J., dissenting).
63. Id.
64. Id. at 783 n.11 (majority opinion).
65. E.g., Keenan D. Kmiec, The Origin and Current Meanings of “Judicial Activism,” 92 CAL. L.
REV. 1441, 1471–72 (2004); Editorial, Shielding Judges Won’t Help, COLUMBUS DISPATCH, Jan. 31, 1998,
at 11A; Taylor, supra note 29, at 1.
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birth abortion,66 homosexual sodomy,67 and the death penalty.68 Others have
dubbed the Rehnquist Court the most activist in history because of the number
of federal statutes it struck down—more than three dozen federal laws in the
past ten years.69 The Rehnquist Court has been called activist not just for its
rulings, but for the manner in which it goes about undertaking judicial review—
namely its perceived reluctance to show some deference to the constitutional
interpretations of Congress and the President before striking down democratically passed legislation.70
Some elements are common to many understandings of judicial activism. It
can involve: (1) deciding a case on the basis of one’s own policy preferences;
(2) deciding a case on the basis of an en vogue philosophical theory;71 (3)
reaching out to decide an issue of which the resolution is not essential to the
outcome of the case;72 and (4) too readily discarding a prior precedent without
considering whether it is entitled to stare decisis treatment.
This is not the place to define judicial activism with precision. Instead, my
objective is to explain how judicial activism, however defined—and the public’s
response to it—relates to judicial independence. As mentioned above, judicial
66. Stenberg v. Carhart, 530 U.S. 914, 922 (2000) (holding that a Nebraska statute criminalizing
partial-birth abortions was unconstitutional).
67. Lawrence v. Texas, 539 U.S. 558, 578 (2003) (declaring unconstitutional a statute that criminalized homosexual conduct).
68. Roper v. Simmons, 543 U.S. 551, 575–78 (2005) (outlawing execution of persons who were
under eighteen when their crimes were committed); Atkins v. Virginia, 536 U.S. 304, 321 (2002)
(banning execution of mentally retarded defendants).
69. See, e.g., Christopher P. Banks, Reversals of Precedent and Judicial Policy-Making: How
Judicial Conceptions of Stare Decisis in the U.S. Supreme Court Influence Social Change, 32 AKRON L.
REV. 233, 247, 249 (1999) (“[T]he ruling [of the Rehnquist Court] in [several cases] disclose[s] that the
Rehnquist Court is engaging in a conservative brand of judicial activism . . . .”); Catherine Crier, What
Conservatives See as the “Right” Stuff, USA TODAY, Nov. 3, 2005, at 15A; see also Bd. of Trs. of Univ.
of Ala. v. Garrett, 531 U.S. 356, 360 (2001) (invalidating rights and remedies in the Americans with
Disabilities Act as unconstitutional as applied to states); United States v. Morrison, 529 U.S. 598, 602
(2000) (holding the civil remedy provision of the Violence Against Women Act unconstitutional);
United States v. Lopez, 514 U.S. 549, 567 (1995) (striking down the Gun-Free School Zones Act of
1990).
70. See Larry D. Kramer, No Surprise. It’s an Activist Court, N.Y. TIMES, Dec. 12, 2000, at A33.
71. Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting) (“This case is decided
upon an economic theory which a large part of the country does not entertain. . . . The 14th Amendment
does not enact Mr. Herbert Spencer’s Social Statics. . . . [A] constitution is not intended to embody a
particular economic theory, whether of paternalism and the organic relation of the citizen to the State or
of laissez faire.”); see also Keith Burgess-Jackson, Our Millian Constitution: The Supreme Court’s
Repudiation of Immorality as a Ground of Criminal Punishment, 18 NOTRE DAME J.L. ETHICS & PUB.
POL’Y 407, 409 (2004) (“[T]he recent Supreme Court decision on sodomy, Lawrence v. Texas, shows
that it all but enacts John Stuart Mill’s On Liberty.” (footnotes omitted)); Christopher Wolfe, Moving
Beyond Rhetoric, 57 FLA. L. REV. 1065, 1080 (2005) (“[N]either does [the Constitution] enact John
Rawls’s A Theory of Justice or Ronald Dworkin’s Taking Rights Seriously. There is no requirement of
moral neutrality in the Constitution, which left to the states the police powers to protect the safety,
health, welfare, and morality of the community.” (footnotes omitted)).
72. PDK Labs., Inc. v. U.S. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring)
(“[T]he cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not
to decide more—counsels us to go no further.”).
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independence and judicial restraint (the opposite of activism) are inextricably
tied to one another. Both aim to prevent judges from consulting extrinsic
materials (whether public opinion or their personal views) when they decide
cases. Seen in this light, public criticism of judges for activism is not necessarily a threat to judicial independence. It is a complement to judicial independence. After all, it remains the role of the legislature to legislate,73 and the
Judiciary to interpret.74 An activist court “legislates from the bench,”75 and thus,
“encroaches on the legislature’s constitutional turf.”76 Legislating from the
bench “destroys the proper end of judging and, therefore, is the greatest threat to
judicial independence, the means to that proper end.”77 Criticizing judges for
judicial activism is a way of reminding judges to perform their proper function
as members of the judicial branch—interpreters of the Constitution. Criticism
encourages judges to realize more fully the practice of ignoring irrelevancies
when they decide cases—the same objective that judicial independence strives
to achieve.
B. USE OF FOREIGN LAW IN DECISIONS
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A more particular form of criticism is to fault judges for relying on foreign
sources of law when construing the United States Constitution or statutes
enacted pursuant thereto. The practice of citing foreign sources has become a
growth industry. The Supreme Court invoked foreign law in Roper v. Simmons,78 which banned the imposition of the death penalty on any offender who
was under eighteen at the time of his crime.79 The Court also used foreign law
in Lawrence v. Texas,80 which declared unconstitutional a state law that made
sexual activity between two individuals of the same sex illegal.81 Foreign law
was also part of the Court’s reasoning in Atkins v. Virginia,82 which held that
mentally retarded convicts could not receive the death penalty.83 The response
from critics has been swift and sure. The House Judiciary Committee’s Subcommittee on the Constitution passed a nonbinding resolution expressing disap-
73. U.S. CONST. art. I, § 1.
74. United States v. Butler, 297 U.S. 1, 62 (1936) (“When an act of Congress is appropriately
challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the
Government has only one duty; to lay the article of the Constitution which is invoked beside the statute
which is challenged and to decide whether the latter squares with the former.”).
75. Michael D. Weiss & Mark W. Bennett, New Federalism and State Court Activism, 24 MEM. ST.
U. L. REV. 229, 260 n.205 (1994).
76. Id. at 260 (citing Carl T. Bogus, Pistols, Politics and Products Liability, 59 U. CIN. L. REV. 1103,
1157 (1991)).
77. Thomas L. Jipping, Legislating from the Bench: The Greatest Threat to Judicial Independence,
43 S. TEX. L. REV. 141, 146 (2001).
78. 543 U.S. 551 (2005).
79. Id. at 575–78.
80. 539 U.S. 558 (2003).
81. Id. at 573.
82. 536 U.S. 304 (2002).
83. Id. at 316 n.21.
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proval the Court’s use of foreign law in determining the meaning of the laws of
the United States.84 One representative even went so far as to threaten impeachment for judges who use foreign law in American court opinions.85
According to critics, the use of foreign legal sources undermines respect for
America’s own Constitution and laws and arrogates to courts a power properly
entrusted to the two political branches.86 As Justice Scalia put it in his Roper
dissent:
Unless the Court has added to its arsenal the power to join and ratify treaties
on behalf of the United States, I cannot see how this evidence favors, rather
than refutes, its position. That the Senate and the President—those actors our
Constitution empowers to enter into treaties, see Art. II, § 2—have declined to
join and ratify treaties prohibiting execution of under-18 offenders can only
suggest that our country has either not reached a national consensus on the
question, or has reached a consensus contrary to what the Court announces.87
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Another shortcoming of the use of foreign laws to construe the United States
Constitution is that alien legal regimes can be radically different from our own,
and the principles they embody can be repugnant to American values: “In many
significant respects the laws of most other countries differ from our law—
including not only such explicit provisions of our Constitution . . . but even
many interpretations of the Constitution prescribed by this Court itself.”88 Many
countries have established churches and lack warrant requirements for searches;89
are these principles to be imported, then, into America’s fundamental law?
84. See H.R. Res. 568, 108th Cong. (2004).
85. Peter J. Messitte, Citing Foreign Law in U.S. Courts: Is Our Sovereignty Really at Stake?, 35 U.
BALT. L. REV. 171, 175–76 (2005) (citing Tom Curry, A Flap Over Foreign Matter at the Supreme
Court, MSNBC, Mar. 11, 2004, http://msnbc.msn.com/id/4506232 (discussing the statement of Congressman Feeney to MSNBC: “To the extent [judges] deliberately ignore Congress’s admonishment [for the
use of foreign law in court decisions], they are no longer engaging in good behavior within the meaning
of the Constitution and may subject themselves to the ultimate remedy, which would be impeachment”)).
86. This criticism is not to say that it is never appropriate to consult foreign law. Foreign court
decisions can be a valuable aid in interpreting treaties. And English common law is a useful tool to the
extent that American lawmakers (particularly the Framers) meant to rely on it. See, e.g., Sarah Helene
Duggin & Mary Beth Collins, “Natural Born” in the USA: The Striking Unfairness and Dangerous
Ambiguity of the Constitution’s Presidential Qualifications Clause and Why We Need To Fix It, 85
B.U. L. REV. 53, 71 (2005) (“The Supreme Court has often emphasized that ‘[t]he interpretation of the
constitution of the United States is necessarily influenced by the fact that its provisions are framed in
the language of the English common law, and are to be read in the light of its history.’” (quoting Smith
v. Alabama, 124 U.S. 465, 478 (1888))); see also Christopher Wolfe, Public Morality and the Modern
Supreme Court, 45 AM. J. JURIS. 65, 70 (2000) (“Moreover, the English common law was readily
adapted to American circumstances, with all the uncertainty that entailed.” (citing Van Ness v. Pacard,
27 U.S. (2 Pet.) 137 (1829) (“The common law of England is not to be taken in all respects to be that of
America. Our ancestors brought with them its general principles, and claimed it as their birthright; but
they brought with them and adopted only that portion that was applicable to their situation.”))).
87. Roper v. Simmons, 543 U.S. 551, 622–23 (2005) (Scalia, J., dissenting).
88. Id. at 624.
89. Id. at 624–25.
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Of course not, and this points out still another flaw with incorporating foreign
law: It is impossible to do so in a principled and neutral way. Different countries
have different legal regimes, and the Court has yet to articulate a principle to
determine which of those conflicting foreign sources should be relied on. Any
reference to foreign law in a particular opinion thus inevitably will be done on
an ad hoc basis: when the law of a particular foreign jurisdiction happens to
support the majority’s position.90 The Roper majority even conceded as much.91
No wonder Chief Justice John Roberts, during his Senate confirmation hearings,
likened looking at foreign law for support to “looking out over a crowd and
picking out your friends. You can find them. They’re there.”92
The crucial point here is not that federal court use of foreign law is or is not
appropriate. The key question is how the practice relates to judicial independence.
One of the principal functions of judicial independence is to insulate judges from
public opinion, to free them to adjudicate disputes based on what the law requires and
nothing else. Only by focusing on the law itself, and ignoring external pressures, will
judges reach legally sound results. Consulting foreign law—such as, legislation
enacted by popular majorities in other countries—is another name for consulting
public opinion. Sometimes proponents of foreign law make this point explicit. Their
fear is that if the United States engages in a particular practice (such as enforcing the
death penalty against juveniles or the mentally retarded), other countries will look
with disfavor on us. After all, they say, the United States is “subject to the scrutiny of
‘a candid World.’”93 This is no different in principle from proposing that judges
should resolve disputes in a way that will prevent American citizens (or members of
Congress, or activist groups) from looking with disfavor on them. For the same reason
judges should decide cases without being swayed by popular pressure from American
citizens, so should they decide cases without being swayed by popular pressure from
foreign citizens.
C. CAREER JUDGES
Up to this point, I have voiced some doubts that public criticism of judges
poses a severe threat to judicial independence. But there is one way in which
90. See id. at 624–27 (discussing many examples of when the Court has declined to conform
American law to the laws of other countries).
91. See id.. at 577 (“The opinion of the world community, while not controlling our outcome, does
provide respected and significant confirmation for our own conclusions.”); see also Eugene Kontorovich, Disrespecting the “Opinions of Mankind”: International Law in Constitutional Interpretation, 8
GREEN BAG 2D 261, 261 (2005) (“This is an extraordinarily honest admission that the Court will only
cite international opinion when it supports the result the justices wish to reach for other reasons . . . .”).
92. Editorial, Foreign-law Folly; Trendy Theory is Incoherent, Undemocratic, SAN DIEGO UNIONTRIB., May 30, 2006, at B6.
93. See Ruth Bader Ginsburg, Associate Justice, Supreme Court of the United States, Keynote
Address at the American Society of International Law Annual Meeting: “A Decent Respect to the
Opinions of [Human]kind”: The Value of a
Comparative Perspective in Constitutional Adjudication (Apr. 1, 2005), available at http://
www.supremecourtus.gov/publicinfo/speeches/sp_02-07b-06.html.
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pervasive criticism of judges’ decisions can compromise the independence of
the courts, without offsetting benefits in the form of democratic participation or
judicial restraint. A real danger exists that the publicly stated views of political
elites—activists, the news media, and officeholders—will condition the environment in which judges operate, leading career-minded members of the Federal
Judiciary to tailor their rulings to conform to the views of the politically
influential.
The process by which “career judges”—those who seek promotion to higher
or more prestigious courts—can internalize elite opinion is fairly straightforward. It is only natural that many state court judges and judges on lower federal
courts would seek to advance through the ranks. They know that Presidents and
Senators historically have preferred to appoint judges who have previous judicial experience.94 They also know that judges whose prior rulings have proved
unpalatable to Presidents or Senators have had a harder time being nominated
and confirmed to new judicial posts.95 Such career judges thus will have an
incentive to placate the officeholders who they anticipate would play a role in
their future elevation (as well as the private opinion makers who would hold
forth on their nominations). Career judges will have reason to decide cases
based not just on their honest estimation of what the law actually requires, but
also, at the margins, based on their sense of what outcomes the political elites
may favor.
My sense is that the threat here largely comes from members of the elite—the
Presidents who nominate judges, the Senators who decide whether to confirm
them, the journalists and editorialists who cover the process, and the activists
who bring pressure to bear on their allies in office. The threat to judicial
independence does not come from criticisms leveled by ordinary members of
the public (except insofar as those citizens have the power, either individually
or collectively, to move elites). Judicial independence has more to fear from an
editorial in the Washington Post than from a posting by an anonymous blogger.
A few qualifications are in order. This analysis is not meant to malign the
integrity of American judges, who, in my experience, strive mightily to resolve
legal disputes in good faith and seek to minimize the influence of external
considerations when they decide cases. It is only to recognize that judges are
human beings and that, as humans, they are as susceptible to self-interest as
everyone else. Note also that elite criticism sometimes can have the opposite
effect. It can cause judges to dig in their heels and refuse to buckle in the face of
public sentiment. The need to maintain judicial independence notwithstanding
the views of powerful elements of the public was one of the reasons the
Supreme Court, in Planned Parenthood of Southeastern Pennsylvania v. Ca-
94. Luke Bierman, Preserving Power in Picking Judges: Merit Selection for the New York Court of
Appeals, 60 ALB. L. REV. 339, 355 (1996).
95. See id. at 356.
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sey,96 cited as a basis for retaining Roe v. Wade.97
How, then, do we counter (or at least minimize) the natural incentive to curry
favor with elites that is experienced by judges who hope for elevation to a
higher court? A good starting point would be to lower the temperature of the
judicial appointments process. Judges who have no reason to fear that the
President or Senate will scrutinize their rulings, line-by-line, in a hunt for
evidence of ideological orthodoxy (or heresy), will be less prone to craft those
rulings to be amenable to elite opinion. This is not a call for the Senate to
abdicate its historically robust and important role in the confirmation process. It
is only a call to focus on nominees’ general judicial philosophies and interpretive methodologies in lieu of their preferred outcomes in particular cases.
CONCLUSION
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Few would dispute that judges must be “free to make decisions according to
the law, without regard to political or public pressure.”98 But judicial independence is not a one-way street. We insulate our judges from day-to-day public
pressures not because we want them to function as platonic guardians of the
public interest, but precisely because in our constitutional system their role is so
carefully circumscribed. In other words, the principal beneficiaries of judicial
independence are not the judges themselves, but the litigants who appear before
them in the hopes of getting a fair shake, and, ultimately, the American people
who look to their courts for impartiality. Seen in this light, public criticism of
the courts does not invariably present a threat to judicial independence, but
actually can play a key role in ensuring that the Judiciary remains independent.
Such critiques are a way of calling on judges to remain faithful to their calling
as detached expounders of the law, and to eschew irrelevancies such as their
own predilections and public opinion when deciding cases. As Chief Justice
William Howard Taft cautioned: “Nothing tends more to render judges careful
in their decision and anxiously solicitous to do exact justice than the consciousness that every act of theirs is to be subject to the intelligent scrutiny of their
fellow men, and to their candid criticism.”99
96. 505 U.S. 833 (1992).
97. See id. at 868–69.
98. Jipping, supra note 77, at 150.
99. Pat McGuigan, The Right of the People To Critique Judicial Rulings: Implications for Citizen
Activism, 22 OKLA. CITY U. L. REV. 1223, 1229 (1997).
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