Rescuing Judicial Accountability from the Realm of Political Rhetoric

Abstract:     
The article examines the threat to judicial independence from political calls for more judicial accountability. The author begins by defining judicial accountability and discussing its purposes before breaking the concept down into three categories: institutional accountability, behavioral accountability, and decisional accountability. This process reveals that in the judicial accountability family, there is but one discrete sub-species, situated in the decisional accountability genus, that does not further accountability's proper purpose and is therefore conceptually problematic: direct political accountability for competent and honest judicial decision-making error that the politicians desire and a serious threat to judicial independence. The critical question becomes one of classification: how does one distinguish honest disagreements as to applicable facts and law, for which direct political accountability is inappropriate, from deliberate usurpations of political power, which are properly subject to sanction? In order to determine the difference between honest judicial mistakes and dishonorable usurpations of power, the author argues that the judge's state of mind must be the principal factor, and that in cases of decision-making error, the presumption should be that the judge in question was competent and honest, absent extrinsic evidence to the contrary.

Keywords: Judges, Judicial independence, Judicial accountability, Judicial criticism

Accepted Paper Series