Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, September 14, 2010

What should judicial accountability look like?

By Rob Vischer

The same-sex marriage controversy in Iowa has spilled into the judicial retention system, where there is an active campaign to remove the supreme court justices who voted to strike down the state statute limiting marriage to a man and a woman.  Let's assume for the sake of this argument that the court's ruling was an example of judicial "activism" unmoored from the rule of law.  Still, I submit that the broader move toward judicial elections -- including the need to raise gobs of cash from interested parties and the reliance on ads deploying scare tactics about unpopular decisions that a judge may or may not reach -- is a bigger threat to the rule of law than any particular decision that has been handed down in recent years.  Thoughts?

https://mirrorofjustice.blogs.com/mirrorofjustice/2010/09/what-should-judicial-accountability-look-like.html

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Rob,

I am not sure is this is a complete answer, but I have long thought that most courts currently possess three qualities that, in combination, are dangerous to have on one institution. (1) They are the final say; the legislature, the people, and the executive have no check on their decisions; (2) they are appointed for or elected for life; and (3) they have no textual or other common criteria that limits their decision-making. In other words, the courts in the US have plenary power to make the law whatever they see fit without any kind of consequences, political or otherwise. I think that having any two of these three qualities in one place is fine; it is the combination of the three that is a problem.

The push to elect judges for limited terms is an effort to eliminate one of the three in order to keep the judiciary from far outstripping the power that any government should have in a democracy. Another way to deal with the issue would be to make decisions with no basis in law (or a habit of making decisions with no basis in law) an impeachable offense. The idea would have to be further developed -- I would imagine impeachment should still be very difficult -- but it would provide some check on what has become a plenary authority. And a third idea would be to simply stop making judicial decisions final, at least with regard to anything beyond the parties involved in a given dispute; treat everything in a decision other than the actual decision as dicta that no one need follow.

I agree with you that the judiciary is ill-suited for elections, and that the process of compaigning could easily undermine the court's integrity. But so does the unguided plenary authority of the modern American judiciary. Something should be done to protect the American people from the power we've vested in judges, though I'm not sure it much matters which.