Judicial Independence at Twilight.

• Author: Geyh, Charles Gardner

ABSTRACT

Judicial independence is a fixture of American government, but its structure has never been fully understood. As long as the federal judiciary has survived episodic attacks with its independence intact, there has been no pressing need to know how or why. But a confluence of cyclical, sustained, and sudden developments now threatens the federal judiciary's autonomy in arguably unprecedented ways and demands a more comprehensive analysis of judicial independence and its vulnerabilities. This article begins by reconceptualizing the structure of judicial independence in three tiers. At the apex is an ancient, Rule of Law Paradigm, which proceeds from the premise that independence enables judges to set extralegal influences aside and impartially uphold the law. In the middle tier is Article III of the U.S. Constitution, via which the framers implemented the Rule of Law Paradigm in a rudimentary way. At the base tier are informal constitutional conventions that emerged over time to fill gaps in the constitutional design and guide the political branches in their relationship with the courts in a manner consistent with Article III and the overarching paradigm. Next, the article explains how this three-tiered structure came into being, how it evolved, later eroded, and how it recently began to collapse with the repudiation of judicial-independence conventions in a neo-populist age that is sweeping the globe. It attributes the long-term erosion of support for judicial independence to the crumbling Rule of Law Paradigm and its increasingly antiquated premise that independent judges impartially uphold the law, unsullied by ideological and other influences. It recommends a gradual shift to what I call a Legal Culture Paradigm, which reframes and defends the role of judicial independence in a government with a judiciary whose judges are deeply acculturated to take law seriously but who are nonetheless subject to extralegal influences at the margins, where operative law is indeterminate. It argues, however, that a reboot of the prevailing paradigm cannot, by itself, quiet the fury firing the ongoing, neo-populist assault on judicial independence, because the judiciary and its autonomy have become little more than pawns subject to sacrifice in a high-stakes chess game played by polarized, partisan political leaders for the future of American Democracy. The article concludes that realistic hope for an accord that restores judicial-independence conventions, guided by a new paradigm, must follow a period of destabilizing, no-holds-barred, partisan combat, in much the same way that settlement in contentious civil cases can often be achieved only after a period of exhausting and unrestrained hardball litigation.

CONTENTS INTRODUCTION I. THE STRUCTURE OF JUDICIAL INDEPENDENCE A. The Constitutional Structure and its Gaps B. The Three-Tiered Structure of Judicial Independence II. THE ESTABLISHMENT, EVOLUTION, AND EROSION OF JUDICIAL INDEPENDENCE A. Judicial Independence 1.0: Establishment B. Judicial Independence 2.0: Evolution 1. Congressional Conventions 2. Presidential Conventions C. Judicial Independence 3.0 1. Legal Realism and the Rise of Social Science 2. Judicial Appointments and the Ascendance of Ideology 3. The New Politics of Judicial Elections 4. The Changing Media 5. Public Perception III. JUDICIAL INDEPENDENCE 4.0: COLLAPSE OF CONVENTIONS A. The Road to 4.0 1. Democracy Fatigue 2. Anti-Elitism 3. The Rise of Neo-populism 4. Political Polarization B. The Arrival of 4.0: Convention Collapse 1. Dismantling Procedural Conventions in Confirmation Proceedings 2. Assault on Court-Packing Conventions 3. Repudiation of Convention Against Delegitimizing Rhetoric 4. Testing the Convention Against Defiance of Court Rulings IV. ENVISIONING JUDICIAL INDEPENDENCE 5.0 A. A New Legal Culture Paradigm B. A Litigation-Like Strategy for Restoring Constitutional Conventions CONCLUSION INTRODUCTION

Judicial politics has recently morphed from a board game to a full contact sport. In 2016, Democrats accused the Republican Senate majority of stealing a Supreme Court seat after the Senate refused to schedule a hearing for President Obama's nominee, Merrick Garland, thereby preserving the vacancy for President Trump to fill. (1) The next year, the Republican Senate majority exercised the "nuclear option" of stripping the minority of power to filibuster Supreme Court confirmations, after the Senate Democratic majority did the same to their Republican counterparts in lower court confirmation proceedings six years earlier. (2) In 2017, the Chairman of the Federalist Society's Board of Directors coauthored a memo to Congress urging it to double the size of the circuit courts and pack them with conservative partisans, while Democratic leaders have since proposed to increase the size of the Supreme Court and pack it with liberal partisans when they return to power. (3) For his part, President Trump campaigned to discredit the "disgraceful" and "political" machinations of "so-called" judges and "Obama judges" who issued rulings impeding his initiatives, prompting an extraordinary rebuke by the Chief Justice, and a retaliatory flurry of counterpunches from the President. (4)

Legal scholars have responded to this "crisis of legitimacy" with an array of "radical" recommendations. (5) Examples include proposals to: limit the terms of the Court's justices; (6) subject the justices to popular election; (7) establish an explicitly partisan Court comprised of half Democrats and half Republicans (8); and select a rotating Supreme Court by lottery drawn from the ranks of the lower courts. (9)

These are fascinating and provocative proposals that force us to rethink the role of the Supreme Court in American government. As radical proposals, however, their prospects for implementation are poor, which effectively relegates them to the realm of thought experiments. Moreover, with exceptions, scholars have fixated on challenges currently confronting the Supreme Court with insufficient heed to the broader context in which those challenges have arisen. This broader context embraces the structure, history, culture and politics of an independent judiciary--including but not limited to the Supreme Court--an appreciation for which is critical to charting a more nuanced and practical course forward that I propose here.

Judicial independence has been a defining feature of the American Constitutional landscape for centuries. It has been theorized in light of its objectives, taxonomized with reference to its forms, and described in relation to its conjoined twin, judicial accountability. The structure of judicial independence, however, has never been fully explained or understood. As long as the foundations of judicial independence have remained sound and the structure has been adequate to support the weight of episodic attacks, there has been no urgent need to fully understand why or how. But that is changing due to developments that are variously cyclical, sustained, and (as described at the outset of this article) sudden. These developments threaten the future of an independent judiciary in unprecedented ways, and counsel the need for a deeper and more systematic evaluation of judicial independence and its vulnerabilities that this article seeks to supply.

The powers that the U.S. Constitution delegates to the three branches of government enable each branch to make the others miserable. If he were so inclined, the President could decline to execute congressional enactments, defy court orders, and deploy the military to consolidate his power. Congress could slash appropriations to the executive and judicial branches and impeach insubmissive Presidents and judges. The judiciary could drive the executive and legislative branches into constitutional crisis via unbridled resort to judicial review.

Apocalyptic scenarios such as these have materialized rarely, if ever. Proceeding from James Madison's premise that "[a] mbit ion must be made to counteract ambition," (10) the framers embedded checks and balances into the constitutional design to equip each branch with the means to thwart attempted usurpations of power by the other two, which, the theory goes, have operated as a deterrent.

That said, those who peddled the proposed Constitution to the fledgling states did not conceive of the three branches as coequal in power. Rather, Alexander Hamilton characterized the judiciary as "least dangerous" because it possessed powers of neither sword nor purse. (11) In the abstract, Hamilton would seem to be right: if one conjured a new "Survivor" reality television series involving three contestants, each with an exclusive power--one who could shoot things, one who could buy things, and one who could declare things--the smart money would not ride on the survival of declare-things guy. A competitor who snubs the guy who shoots things, or the guy who buys things, risks being shot or starved; but the guy who declares things can be ignored with impunity unless one or both of the other two has his back.

To the extent that the judiciary has emerged, evolved, and endured as a separate, independent, and ultimately powerful branch of government, despite its vulnerabilities, it is because the people and the public officials who represent them have collectively willed it to be so. The collective will is embodied in a deeply rooted Rule of Law Paradigm that has guided the framing of the U.S. Constitution and structured the judiciary's role in relation to the other branches of government. That paradigm, in a nutshell, posits that judges who are afforded independence from the so-called "political" branches will exercise judicial power by setting aside extralegal influences and impartially upholding the law in their capacity as courts. (12)

The Rule of Law Paradigm acknowledges that judges should be accountable to Congress (in extreme situations) for treason, bribery, and other...