How Does Public Hold Judges Accountable but Keep Them Independent?
We are familiar with the public’s increasing perception that we have a “runaway court system” in which judges make law rather than interpret law. Nancy Pearcey, a Christian scholar whom I respect, writes:
If the courts make law, then why do we need legislative bodies? The courts would become a law unto themselves, which is precisely the monopoly of power that the separation of powers was designed to prevent. Restoring the separate functions of each branch of government is the surest institutional protection of American liberty.
However, there is another side to the judiciary debate. Do we really want judges to render decisions based on the majority view? Are there times when the majority is wrong? Sometimes it is the job of judges to protect our nation from the majority, ensuring that the majority does not run roughshod over our Constitution and laws.
Lauren Nyren is a communications staffer at the Justice At Stake Campaign. Nyren wrote by email to Terra Extraneus:
I read your blog pretty regularly and I thought this piece my boss wrote for Slate might be of some interest to you guys.
Lauren’s boss is Bert Brandenburg, executive director of the Justice at Stake Campaign, based in Washington, D.C. According to Justice At Stake’s website: “Our mission is to … work for reforms to keep politics and special interests out of the courtroom — so judges can do their job protecting the Constitution, individual rights and the rule of law.” The JAS campaign is supported by the American Bar Association, Association of Trial Lawyers of America, American Board of Trial Advocates, American Judges Association, and many other organizations.
A primary theme of the Justice At Stake Campaign is “judicial independence”:
The threat to fair and impartial courts — and judicial independence — is growing.
• Special interests are spending millions to influence decisions and elect judges to serve their narrow interests, not the public interest.
• The cost of judicial campaigns is skyrocketing, forcing judges to raise money like politicians — and people believe that justice is for sale.
• Misleading and partisan attacks on judges’ decisions are bringing politics into the courtroom.
I read Brandenburg’s Slate article. One comment that caught my eye is his warning to judges that they will not succeed against “court-bashers” by ignoring the public’s legitimate desire for accountability behind the bench.
Court-bashers have been busily framing their anger in accountability terms that resonate with American values. That’s why wishing away the accountability debate is a huge mistake. Independent courts have always coexisted with American populism, and citizens of all stripes are right to insist that courts must be accountable. The judicial establishment can’t afford to treat ordinary Americans like ignorant cousins at the family picnic. Judges are the sleeping giants in the national debate over the courts, and if they don’t wake up soon, they’ll find themselves lashed down.
As for Terra Extraneus’ stand on judicial independence vs. judicial accountability, I will leave it to my colleague here at TerraX to share his thoughts, if he is so inclined. Mr. Heggy has several decades of experience as a trial lawyer.
