When Freedom Isn't Free: The Costs of Judicial Independence in Bush v. Gore
26 Pages Posted: 18 May 2002
In an earlier article, Two Concepts of Judicial Independence, 72 So. Cal. L. Rev. 535 (1999), I developed a taxonomy of meanings for the idea of "judicial independence" that draws on Sir Isaiah Berlin's distinction between negative and positive concepts of liberty. The constraints on judicial action range along a rough continuum ? from those that raise concerns even under an exclusively negative conception of judicial independence, such as freedom from physical intimidation or freedom from direct pecuniary consequences, to those that pose problems only under an extremely robust positive conception, such as freedom from review by higher courts, freedom to ignore precedents, and freedom to pursue a conception of the good or the just that flies in the face of enacted statutes.
In this essay, prepared for a symposium at Ohio State, I apply that framework to the litigation surrounding the presidential election of 2000. I show how that litigation implicated a number of aspects of judicial independence. With respect to the justices of the Florida Supreme Court, I discuss questions such as the effect of their status as popularly elected officials, the peculiar relationship among the branches of government in presidential election cases, and their position within the judicial hierarchy. With respect to the members of the United States Supreme Court, I discuss the implications for judicial independence of potential personal stakes in the outcome of the litigation; individual Justices' desire to influence the future composition of the Court; and the Court's freedom from direct political control. Finally, I discuss the ways in which the U.S. Supreme Court's decision in Bush v. Gore reflects two particularly assertive and troubling assertions of judicial independence. First, the Court saw itself as free to determine the meaning of Florida law for itself, without regard to the views of the Florida Supreme Court. Second, the per curiam opinion asserted the Court's freedom from the pervasive constraints on an individual judge's ability to pursue her own ends that precedent and stare decisis normally impose.
The litigation surrounding the presidential election of 2000 illustrates a central point about judicial independence: we need to ask quite carefully what constraints judges ought to be free from, and what constraints judges ought to be bound by. In the end, judicial independence is not a single concept, but a constellation of different sorts of autonomy. Not every assertion of judicial autonomy is equally justifiable. Particularly when courts adopt aggressively independent stances, we must measure assertions of judicial autonomy against the competing claims of other actors within our system of democratic self-government.
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