Federal Judicial Independence: Constitutional and Political Perspectives - Martin H. Redish

• Publication year: 1995

Federal Judicial Independence: Constitutional and Political Perspectives

Martin H. Redish^*

I. Introduction

Since the nation's beginning, the concept of federal judicial independence has been almost as confusing to political and constitutional theorists as it is fundamental to the successful operation of our form of constitutional democracy. On the one hand, the Constitution's framers consciously chose to insulate members of the federal judiciary from at least the most acute forms of potential political pressure by expressly providing for the protection of their salary and tenure.¹ On the other hand, the framers simultaneously provided the groundwork to facilitate the exercise of seemingly substantial congressional control of the jurisdiction of the federal courts, thereby potentially undermining the very independence expressly provided to the judges of those courts.²

While this apparent theoretical contradiction is largely consistent with the pragmatic balances found throughout the Constitution, it has often given rise both to theoretical³ and doctrinal uncertainty.⁴

Additional questions might be raised concerning the extent to which constitutionally guaranteed judicial independence conflicts with congressional efforts either to exert control over the procedural operation of the federal courts⁵ or to curb significantly the discretion of federal judges in imposing criminal sentences.⁶ Further inquiry has been made concerning the extent of any constitutional obligation of Congress not to reduce the nonsalary support services that have already been supplied to the federal judiciary.⁷ Therefore, the time now appears ripe for a wideranging reconsideration of the constitutional and political scope of federal judicial independence.⁸

Such a reexamination reveals that much of the present theoretical and doctrinal confusion results from the general failure to recognize that the concept of federal judicial independence can itself be sub-divided into four conceivable categories: "institutional" independence, "lawmaking" independence, "counter-majoritarian" independence, and "decisional" independence.⁹ Institutional independence refers to the noncase specific protections of salary and tenure explicitly provided in Article III of the United States Constitution. They are described as "noncase specific" because they concern the broad independence protections of the federal judiciary as an institution, untied to the adjudication of a specific case, group of cases, or substantive issue. Thus, a federal statute seeking to reduce the salaries of federal judges could presumably be held unconstitutional on its face, even though the reduction was not tied to the prospective adjudication of particular cases.¹⁰ Lawmaking independence refers to the ability of the federal courts to create either controlling substantive legal principles or governing general rules of procedure in the course of individual adjudications, free from interference by the other branches of the federal government.¹¹ Counter-majoritarian independence describes the ability of the federal courts to interpret applicable provisions of the Constitution in the course of individual adjudications.¹² Finally, decisional independence concerns the ability of the federal courts to interpret and apply, rather than create substantive legal principles in the specific context of an individual adjudication, free from control or interference by the purely political branches of the federal government.¹³

While the scope and meaning of institutional independence are ascertained largely by resort to traditional methods of interpreting constitutional text,¹⁴ one is forced to resort to alternative methodologies to ascertain the proper scope of the other sub-categories of judicial independence. Ultimately, examination of constitutional text alone proves unsatisfactory in performance of this task. Instead, one must guide interpretation of that ambiguous text with a proper understanding of the underlying principles of constitutional and political theory. While decisional and counter-majoritarian independence are essential as matters of both American political theory and constitutional directive,¹⁵ the same cannot be said of lawmaking independence in either its substantive or procedural manifestations.¹⁶ Indeed, recognition of this form of judicial independence would actually undermine the essence of American democratic theory—a theory that places the primary power to fashion sub-constitutional public policy in the hands of those who are representative of and accountable to the electorate.¹⁷

The first section of this Article explores the text, purposes, and conceivable interpretive models of the textually provided guarantee of institutional independence, as well as the most significant doctrinal questions to which that provision gives rise. The second section contrasts the concepts of decisional and lawmaking independence from the perspective of both constitutional analysis and American political theory. The Article then considers the implications of that analysis for modern congressional efforts to constrict judicial decision making authority on both substantive and procedural fronts.

II. Institutional Independence: The Proper Scope of the Compensation Clause

Although the Constitution gives Congress discretion to create lower federal courts, it mandates the presence of certain attributes if inferior federal courts are created: "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office."¹⁸ While controversy existed at the time of the Constitution's framing over whether a system of lower federal courts should be created, there was apparently no significant disagreement that if inferior federal courts were created they should be independent of the other branches of the federal government. The framers sought to protect this independence by the constitutional guarantee of salary and tenure.

At first glance, at least as to the issue of judicial salary, the Compensation Clause appears as straightforward as virtually any constitutional provision. Closer examination reveals, however, that interpretation of the Clause is fraught with potential confusion. For example, does the protection against salary reduction extend to auxiliary services the government provides, such as law clerks and secretaries? If not, does it prohibit congressional reductions in these services when such reductions are unambiguously imposed as retribution for a decision or series of decisions made by the federal courts? Does the clause require salary raises during periods of inflation, so that the judges' real income is not diminished? Does it authorize the imposition of newly created general nondiscriminatory taxes on judges that are applied to all citizens, or at least to all federal employees?

In answering these questions, it is important to ascertain both the likely purposes the framers sought to attain by the salary and tenure protections and the particular methodology the framers chose to attain those goals. The former may well be considerably more obvious than the latter. The drafters of Article III sought to insulate the federal judiciary from potential pressures, from either the representative branches of the federal government or the public, that might skew the decision making process or compromise the integrity or legitimacy of federal court decisions.

In light of this reasoning, one might assume that any congressional action that has the effect of threatening, or at least is intended to threaten, federal judicial independence should be deemed a violation of Article III. This conclusion is undermined, however, by recognizing the particular methodology the drafters utilized to accomplish their purpose. Basically, two conceivable modes of implementation were available, both of which may be analogized to the alternative methods for determining whether a suit is untimely when filed: a "statute of limitations" approach and a "laches" approach. Under a laches approach, like the doctrine of the same name, a court examines each case individually to determine whether, under the circumstances, the concerns that gave rise to the limitation are present.¹⁹ Thus, in deciding whether a suit is untimely under a laches approach, a court would decide whether, in light of all the relevant circumstances, it would be unfair or unreasonable to allow the plaintiff to proceed.²⁰ By analogy, a court employing a case-by-case method to insure judicial independence would invalidate any congressional action that, under all of the relevant circumstances, presented a real threat to that independence.

By its terms, however, Article III rejects use of a case-by-case methodology, and with good reason. Both the difficulties in determining whether judicial independence has in fact been compromised in the individual instance and the political friction that could result from such an inquiry would be prohibitive. Instead, Article III clearly employs a statute of limitations approach whereby a rigid "line in the sand" is drawn and applied, regardless of the special needs of the individual situation. Thus, in enforcing a statute of limitations a court is not permitted, in an individual case, to conclude either that suit would be unfair even though filed a day before the expiration of the statutory period, or that suit would be fair despite the fact that it was filed a day after expiration. Therefore, in determining the timeliness of a lawsuit, a statute of limitations approach is employed for the very purpose of avoiding the uncertainty inherent in use of a case-by-case approach. Similarly, Article III imposes a rigid line disallowing reduction of federal judicial compensation. However, other than its guarantee against salary reduction, Article III imposes no further...