Judicial Independence?

It has been a busy and exciting week at the OU College of Law on the occasion of our alum Robert Henry’s investiture as Chief Judge of the 10^th Circuit.  The 10^th Circuit has been sitting at OU all week.  On Tuesday night four of the judges spent a couple of hours talking with students at a Federalist Society event.  Thursday morning Justice Sandra Day O’Connor sat with one panel, and Friday morning our three courtrooms were occupied by separate panels of judges hearing arguments. Thursday afternoon Justice Stephen Breyer gave the annual Henry Lecture (endowed by Robert Henry, his cousin Governor Brad Henry, and the Henry family) and Thursday night after dinner OU President David Boren engaged in a fireside chat (sans the fire) with Justices O’Connor and Breyer. 

Judicial independence was stressed by both justices – in the lecture and during the evening discussion. 

In the first part of his provocative lecture, Breyer argued that it was the obligation of the people (and their political leaders) to accept the Court’s constitutional rulings even when they disagreed with them.  Here he contrasted President Jackson and President Eisenhower, suggesting that we have made “progress” toward this goal of being a people respecting the rule of law defined partly as the law laid down by the Court. 

In the second part of his lecture, Breyer discussed the obligation of the Court and used Dred Scott as an example of the Court getting it “wrong, wrong, wrong.”  He did not, however, circle back to Part One of his talk to discuss who had the better response to Dred Scott, Lincoln or Douglas.  But to be consistent with the conclusions drawn in Part One of the lecture, he would have to side with Douglas unless another rule is operative when the Court doesn’t just get it “wrong” but gets it “wrong, wrong, wrong.”

When judges are acting as judges, I strongly back judicial independence.  They need that insulation from outside pressure when making decisions, especially unpopular decisions.  But, when the Court gets a constitutional issue not just “wrong” but “wrong, wrong, wrong,” should we, with Douglas, hold ourselves bound by that decision giving it the title Law, or should we, with Lincoln, conclude that the Court’s holding is not binding in the political sphere?  What do you think?

Hamilton

(in the Federalist Papers) got it right, I think.  He argued for judicial review, even in constitutional matters, and he saw the need for an independent judiciary.  Breyer used these two points from

Hamilton

as a foundation for his argument in Part One of his talk.  But, as I read

Hamilton

, he goes farther, suggesting that if and when the Court oversteps its bounds and usurps legislative authority, Congress won’t stand for it.  In other words, Hamilton saw a dynamic interplay between the Congress and the Court, where the Court would provide a check on the Congress but Congress would also provide a check on the Court, at least where the Court gets it “wrong, wrong, wrong” to use Breyer’s words.  Breyer did not mention this part of

Hamilton

’s argument.

I wonder whether the current quest for judicial independence is a quest to insulate the judiciary from an active Lincoln-type (more than mere words) criticism of the Court’s work.  To reject complete judicial independence and follow Lincoln (and Hamilton) raises many questions.  When should we take action against the Court?  Obviously (at least to me), it can’t be when we merely disagree with the Court’s conclusion.  Is it anytime the Court writes an opinion that would merit no more than a “C” if written by one of our students? (I can think of several!)  Or, is more required?  Is it only on those occasions when the Court gets it so wrong that in John Hart Ely’s words (referring to Roe) it is not just bad constitutional law but that it is so bad that it is not law at all?  (Or, to use Breyer’s words, when the Court gets it “wrong, wrong, wrong.”)  Or, is still more required?  Is it only when the Court gets it “wrong, wrong, wrong” and the case is one of those epoch cases like Dred Scott and Roe?  And, then, what action should be taken?  Do we ignore, as a political matter, the Court’s ruling as

Lincoln

said he would?  Do we attempt to pack the Court with different minded judges as

Lincoln

said he would?  Do we attempt to strip the Court of jurisdiction?  Do we attempt to impeach the offending justices?  Do we mess with the Court’s budget?  On this last score, it seems to me that Congress could signal to the Court that the Court is overstepping its bounds by taking away the Court’s computer and law clerk privileges as punishment for misbehavior.  If those budgets were cut, the Court would, as

Hamilton

suggested, reflect and repent.

I can understand why judges would try to convince the public that they are entitled to an almost absolute independence.  Looking at human nature, the framers assumed that each political power center would attempt to protect and grow its turf, therefore it supplied check and balances.  What baffles me is the degree to which Congress has abrogated its responsibility to provide a check on the Court in some fashion at least in those instances where the Court gets it “wrong, wrong, wrong” in an epoch case.

As Justice Breyer continues to explore the web of interlocking relationships in our polity, I hope he will address whether the people (and their representatives) have a right and maybe even a duty to push back against the Court at least when the Court makes a “wrong, wrong, wrong” decision of epoch proportions.  After his lecture, Justice Breyer said that he will wrestle with

Lincoln

’s response to Dred Scott. Will he champion Lincoln or Douglas?  I look forward to hearing Breyer’s thoughts.