Judicial independence and social welfare.

• Author: Gilbert, Michael D.
• Position: Introduction through II. Optimal Judicial Independence C. Step Three: The Decision, p. 575-601

Judicial independence is a cornerstone of American constitutionalism. It empowers judges to check the other branches of government and resolve cases impartially and in accordance with law. Yet independence comes with a hazard. Precisely because they are independent, judges can ignore law and pursue private agendas.

For two centuries, scholars have debated those ideas and the underlying tradeoff: independence versus accountability. They have achieved little consensus, in part because independence raises difficult antecedent questions. We cannot decide how independent to make a judge until we agree on what a judge is supposed to do. That depends on one's views about complicated issues like minority rights, the determinacy of law, and the nature of legalism itself. These complications have paralyzed the debate.

This Article presents a way forward. It reduces the debate about independence to a small set of intuitive parameters and shows how they interact. The result is a framework for identifying the optimal degree of judicial independence. The framework transcends the thorny issues bogging down the debate by allowing scholars with diverse views and methodologies to input whatever assumptions they like and get an answer to the question "how independent should judges be?"

This framework generates important insights. It shows that independence can implicate a new and fundamental trade-off. Independent judges make some nonlegalistic decisions, and each such decision imposes a high cost on society. Dependent judges make more nonlegalistic decisions, but each imposes a low cost on society. The framework also shows that society may prefer a dependent judge to adjudicate minority rights and that the determinacy of law can be irrelevant to the choice between an independent and a dependent judge. Finally, it shows that the debate rests on deep and contestable assumptions about the value of law. The question is not whether the legalistic decisions that independence is supposed to facilitate are better than nonlegalistic alternatives. The question is "how much better?"

TABLE OF CONTENTS INTRODUCTION I. BACKGROUND ON JUDICIAL INDEPENDENCE A. Defining Judicial Independence B. The Debate over Judicial Independence 1. Propensity for Legalism 2. Congruence with Society 3. Minority Rights 4. Determinacy of Law 5. Value of Legalism C. The Debate Stalled II. OPTIMAL JUDICIAL INDEPENDENCE A. Step One: The Judge B. Step Two: The Case C. Step Three: The Decision D. Step Four: The Payoff E. Decision Tree III. INDEPENDENCE REVISITED A. Independence and Social Welfare B. Minority Rights Are Not Dispositive C. The Determinacy of Law Is Not Dispositive D. The Value of Legalism Matters E. Independence May Be Preferable When Legalism Is Not F. Summary IV. LEGAL AND POLICY IMPLICATIONS A. Separation of Powers B. Legal Reform C. Judicial Selection CONCLUSION APPENDIX A. Independence as a Continuous Variable B. Nonlegalistic Decisions in Determinate and Indeterminate Cases INTRODUCTION

In 2009, the Supreme Court of Iowa unanimously held that same-sex couples have a right to marry under the state constitution. (1) A year later, Iowans voted out of office three justices who joined that opinion. (2) In the months leading up to the vote, out-of-state groups spent nearly one million dollars on political ads targeting the justices? As that storm brewed, the U.S. Supreme Court confronted Caperton v. A.T. Massey Coal Co. (4) That case involved an elected judge who, after refusing to recuse himself, cast the decisive vote in a multimillion-dollar contract case in favor of the principal supporter of his election campaign, (5) Over a vigorous dissent, the Supreme Court held that the judge's refusal to recuse violated the Constitution. (6)

These two events energized the debate over judicial elections. (7) They also implicated the issue anchoring that debate: judicial independence.

Judicial independence is a cornerstone of American constitutionalism, and it has long been a source of controversy. In the Federalist Papers, Alexander Hamilton argued that independence "is the best expedient which can be devised in any government, to secure a steady, uptight, and impartial administration of the laws." (8) According to Chief Justice John Marshall, "[T]he greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people, was an ignorant, a corrupt, or a dependent Judiciary." (9) But there is another side to the story. As the Anti-Federalist Brutus wrote in 1788, "[When] power is lodged in the hands of men independent of the people, and of their representatives ... no way is left to controul them." (10)

This rhetoric captures a pair of enduring arguments. On the one hand, independence insulates judges from outside pressures, and that empowers them to interpret law impartially. That impartiality seems critical to the separation of powers and the rule of law generally. (11) On the other hand, independence means little or no accountability. That seems antithetical to democracy, and it might be dangerous, as judges can ignore law and pursue personal agendas. (12)

The debate about independence has grown more complex over time. In addition to the fundamentals--impartiality and accountability--judicial independence implicates at least three related issues. First, minority rights: What minorities merit legal protection, how much, and what kind of judge is best suited to the task? Second, the determinacy of law" How often does law yield unique, correct answers, and what kind of judge will identify them? Third, the nature of legalism itself: How exactly are judges supposed to resolve cases? As Fred Schauer has written, "[B]efore we can talk seriously about how to select and retain judges, we must have an idea of what ... they ought to do." (13)

These issues present a challenge for the study of judicial independence. The central question seems simple: How independent should judges be? The answer matters not only because it is intrinsically interesting but also because it could inform a variety of debates. Vast literatures--on the separation of powers, (14) judicial selection mechanisms, (15) judicial review and the countermajoritarian difficulty, (16) judicial decisionmaking, (17) statutory interpretation, (18) transnational courts, (19) democratization, (20) corruption, (21) economic development (22) and freedom itself (23)--are rooted in conceptions of and assumptions about judicial independence. But we cannot answer the central question and inform those debates without first confronting hard questions about accountability, determinacy, minority rights, and so forth. Those issues are thorny. They have positive and normative components, and scholars strongly disagree on them.

This Article presents a way forward. I develop a framework for identifying the socially optimal degree of judicial independence. By "socially optimal degree" I mean the degree that would maximize aggregate utility. Utilitarianism, like all other conceptions of social welfare, is contestable, but it is intuitive and widely understood, and I use it for purposes of illustration. The framework can accommodate many different conceptions of social welfare.

The key insight is that we do not need to resolve the thorny, underlying issues to make progress. Rather, we can stitch those issues into a logical sequence and replace them with placeholders. The result is a general decisionmaking framework. One can input into the framework whatever assumptions one likes--about the effect of independence on impartiality and accountability, about the meaning of legalism, and so forth--and it will yield an answer to the question "how independent should judges be?"

The framework cannot provide a universal answer to the question. Its product depends on one's subjective inputs. But it still makes many contributions. It organizes the swirling debate about independence into a small set of intuitive arguments. It shows how those arguments, which are usually pursued in isolation, interact. It provides a common device that scholars with diverse methodologies and varying opinions on the underlying questions can use and adapt to different legal, political, and institutional settings. It identifies the optimal degree of independence for any set of assumptions, and conversely, it identifies the assumptions that must hold for any particular degree of independence to be optimal. This last point is important. Many observers take strong positions on the "right" degree of independence, but they fail to understand the necessary conditions on which their positions rest.

This Article also challenges old ideas and generates new ones. I will preview three of the conclusions. First, I reduce the debate about judicial independence to a fundamental trade-off. Not the usual one--more independence implies less accountability, and vice versa (24)--but one that is deeper and more precise. Under plausible conditions, an independent judge will make more legalistic decisions, and fewer nonlegalistic decisions, than a dependent judge. But each nonlegalistic decision will impose a high cost on society because independent judges' decisions are incongruent with the policy preferences of a representative citizen. A dependent judge will make fewer legalistic, and more nonlegalistic, decisions than an independent judge. But each nonlegalistic decision will impose a low cost on society because dependent judges are more congruent with a representative citizen. We need not agree on what exactly constitutes a legalistic decision to recognize and appreciate that trade-off.

Second, I shed light on the relationship between independence and minority rights. Many argue that independent judges are more apt to protect minority rights. (25) I show that even if that is true, and even if protecting minorities is very beneficial for society, we may still be better off with dependent judges. A few more decisions protecting minority rights...