Judicial Independence, Judicial Virtue, and the Political Economy of the Constitution

14 Pages Posted: 22 Jun 2011 Last revised: 7 Feb 2012

Nelson Lund

George Mason University School of Law

Date Written: June 22, 2011

Abstract

This short symposium piece, prepared for a panel on “Economic Theory, Civic Virtue, and the Meaning of the Constitution,” explains why the framers structured the judiciary in a way that departed dramatically from their general economic theory of government — a theory summed up most succinctly in Madison’s dictum that “ambition must be made to counteract ambition.” In defending an independent judiciary, The Federalist supplemented its well-known emphasis on the structural weaknesses of the courts with a less famous argument that relied on peculiar personal virtues of self-restraint that the ratifiers of the Constitution could reasonably expect the new federal judges to possess.

The essay contends that modern Supreme Court Justices consistently promise to adhere to the traditional ideal of judicial self-restraint during confirmation hearings, but frequently depart quite dramatically from that ideal after they take their seats on the bench. The essay summarizes four steps (which Craig Lerner and I have explored in more detail elsewhere) that Congress could take to encourage greater fidelity to judicial virtue. Such reforms could actually have some salutary practical effects on judicial behavior, unlike the kabuki dramas that Senators orchestrate during confirmation hearings. And the reforms would at least help the Justices look a bit more like the sober and modest magistrates that The Federalist plausibly promised and that all recent nominees promise to be.

Keywords: Alexander, anonymous opinions, appeals, balance, circuit riding, Continental, Democrat, district courts, extrajudicial statements, Federalist Papers, final word, founding fathers, Herbert Storing, House of Representatives, James, law clerks, panel, power, President, Republican, Senate, Supreme Court

JEL Classification: P16

Suggested Citation

Lund, Nelson, Judicial Independence, Judicial Virtue, and the Political Economy of the Constitution (June 22, 2011). Harvard Journal of Law and Public Policy, Vol. 35, No. 1, pp. 47-59, Winter 2012; George Mason Law & Economics Research Paper No. 11-29. Available at SSRN: https://ssrn.com/abstract=1870388

Nelson Robert Lund (Contact Author)

George Mason University School of Law ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8045 (Phone)

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