Straddling the Fence between Truth and Pretence: The Role of Law and Preference in Judicial Decision-Making and the Future of Judicial Independence
17 Pages Posted: 31 Oct 2009 Last revised: 12 Jul 2013
Date Written: 2008
In this essay, I begin by describing two contrasting models of judicial decision-making. The traditional, law-based model posits that judges, if left to their own devices, will do their best to uphold the rule of law, and to that end, judicial independence is necessary to protect the decisions they make from external interference. The emerging, preference-based model, on the other hand, posits that independent judges exploit their independence by implementing their personal attitudes or values with no particular regard for the rule of law. I will then explain how contemporary debates on such issues as judicial selection, the regulation of judicial speech, the optimal rules for judicial disqualification, and the relationship between judicial independence and accountability generally, are animated by these contrasting models of judicial decision-making. I accept a widely-shared, common-sense view that the dichotomy between law-based and preference-based models is a false one, in that law and preferences both play a role in judicial decision-making. I argue, however, that the legal establishment has been reluctant to depart from the script of the law-based model, for fear that doing so will undermine the primary justification for independence (by conceding that independent judges do more than simply follow the law when they decide cases). I argue that there may be other justifications for judicial independence that ought to hold sway in a world where judicial decision-making involves a complex interplay between law and preference-justifications that liberate judges and lawyers to speak more candidly about the role preferences play in judicial decision-making without conceding the need to curtail judicial autonomy in untoward ways. If we can move toward a broader consensus on what judges do when they decide cases, it may enable more meaningful engagement on such issues as judicial selection, speech, disqualification, independence and accountability.
Keywords: Judicial independence, judicial selection, Rule of law, judicial accountability, judicial elections, judicial politics
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