19 Pages Posted: 4 Aug 2006 Last revised: 5 Apr 2009
In this paper I argue that the main cause of the poisonous state of interbranch relations involving the federal judiciary, as of the frequent and strident attacks on courts, federal and state, are strategies calculated to persuade the public that courts are part of ordinary politics and thus that judges are policy agents to be held accountable as such. Although unremarkable in the sense that a breakdown in norms of interdependency is a defining characteristic of contemporary politics, I regard the current situation involving the federal judiciary as remarkably dangerous because of the possibility that a tipping point of no return to the traditional equilibrium in interbranch relations may be reached. That prospect is suggested by the insight that our "tradition of judicial independence" has depended critically on the public's support of the courts irrespective of the decisions they make ("diffuse support"), and by research that provides reason to fear that the distinction between diffuse support and support depending on those decisions ("specific support") will disappear, leading people to ask of the judiciary only "what have you done for me lately?" I then turn to how, in the conduct of interbranch relations, the judiciary should respond to the impulses and incentives, both legitimate and illegitimate, that have brought us to this unhappy point. I conclude that successful interbranch relations requires the institutional judiciary to avoid the attitudes and techniques of contemporary politics, but not to avoid politics, and that the main challenge in that regard is to avoid the perception that the federal judiciary is just another interest group. Finally, using the writings and career of the late Richard Arnold to exemplify what is needed in the politics of judging as well as the politics of the judiciary, I argue for judges to provide leadership in a return to norms of custom, dialogue and statesmanship in interbranch relations. In order to do so, more federal judges will need to follow Arnold's example in recognizing that a presidential commission does not confer moral superiority, that judicial accountability, properly conceived, is essential for judicial independence, and that both "posterity worship" (the attempt to control the future) and institutional aggrandizement are inimical to the long-term interests of the federal courts and the federal judiciary.
Keywords: judges, policy agents, federal judiciary, courts, judicial independence, incentives, contemporary politics, interest group, Richard Arnold, long-term interests
Suggested Citation: Suggested Citation
Burbank, Stephen B., Judicial Independence, Judicial Accountability and Interbranch Relations. Georgetown Law Journal, Vol. 95, p. 909, 2006; University of Pennsylvania Law School, Public Law Working Paper No. 06-29. Available at SSRN: https://ssrn.com/abstract=922091 or http://dx.doi.org/10.2139/ssrn.922091