The Independence of Judges - James Zagel and Adam Winkler

• Publication year: 1995

The Independence of Judges

James Zagel^* and Adam Winkler^**

I. Introduction

One might begin by asking why we are having this symposium. "Judicial independence" arises infrequently in litigation, so there are few snarling doctrinal knots to loosen and even fewer precedents to ponder. The truth is that our legislative and executive branches of government rarely attempt to interfere with the decisions of the federal judiciary. Of the few cases that have been decided, most seem surprisingly minor in their importance and insight.¹ It seems to us immensely difficult to make many judgments about judicial independence in the abstract that are likely to win widespread agreement, and in this area abstraction abounds. Even lawyers, for all their willingness to take sides on any issue, prefer to have some good precedent or doctrine on which to rely, much as cowpunchers prefer trained horses. The notion of judicial independence—what it is and what it requires—remains largely undefined because few important battles have been fought over it. Ever since Chief Justice John Marshall's vigorous defense of judicial review,² there has evolved a general consensus in America that judicial independence is a good thing, even if none of us know precisely what it is. When independence is neither challenged nor threatened there is little incentive to make clear and distinct the core concepts; war forces you to consider exactly what you wish to defend. In such an environment, scholars can nary afford to believe that their wisdom and thoughtfulness will actually influence the shape of the law. Inactive doctrine is also impenetrable doctrine.

Ultimately, scholars have symposia such as this because they are intellectually interested, and not because they hope to influence doctrine. Judicial independence is a sacred idea in American constitutionalism, and scholars think about it because it is an interesting problem on the level of theory. As a theoretical matter, judicial independence has been approached from few different angles. Almost all discussions of judicial independence—including those of this symposium—focus on the undeniably important dilemma of executive or legislative interference with the decisions of the judiciary. The common concern of these discussions is the entangling of the three separate branches of government in a way that the judiciary's decisions are pressured or influenced.³ Commentators emphasize the Constitution's salary and tenure provisions,⁴ and the problem of congressional limitations on the jurisdiction of the federal courts.⁵ This is essentially a structural approach, in that judicial independence is conceived of as something arising out of various provisions of the Constitution pertaining to the structure of government.

There are, however, other possible ways to think about judicial independence. We want to engage one such possibility to see if it might be profitable. We want to consider what judicial independence means from an introspective angle—from the inside-out as it were, seen through the judges' eyes. An introspective approach seeks to understand judicial independence not by reference to the structural organization of the three branches of government, but by reference to the judge's own perception of her ability to adjudicate cases. Our model is a self-reflective judge, sitting alone in chambers, pondering the ways in which she is independent. Grappling with what judicial independence looks like from an introspective angle may teach something new about judicial independence and what it requires.

More specifically, an introspective understanding of judicial independence reveals that judges occupy a place of high tension, located at the intersection of numerous different restraints and liberties. An introspective understanding indicates that structural arguments are incomplete because they focus solely on the threat posed to the judiciary by the other two branches of government, ignoring what is made clear by introspection, the threat to independent adjudication posed by and within the judiciary itself. An introspective approach also shows that many forms of constraint felt by judges that interfere with independent adjudication exist beyond the realm of law and legal doctrine, partaking of the realm of culture. Finally, it shows that the structure of the Constitution, while sometimes important to the perspective of a single judge deciding a single case, is simply one part of the foundation of independence. Some of this may seem to have little relevance for how to interpret the Constitution or how to decide controversies involving interferences with independent adjudication. It is nevertheless significant if we want to come to a better theoretical understanding of what it means to have "independent" judges and of what constraints bind judges from asserting that independence throughout the exercise of the judicial power.

Part II of this Article presents the argument for moving beyond structural analyses of independence. This Part defines what it means to understand judicial independence "introspectively" and describes the problems with a purely structural approach. Part III undertakes one interpretation of what judicial independence means from an introspective vantage point. It considers the types of restraints imposed on judges that although hindering the exercise of independent adjudication, evade detection by a purely structural argument.

One note before we continue. In keeping with the theme of this symposium, our analysis centers on judges sitting on the federal bench. This generally means the federal trial judges in the district courts because they make up the majority of the federal judges. The arguments made and insights offered may or may not apply to other judges, depending upon where they sit and their duties.

II. Why Go Beyond Structure?

A. Structure: A Partial Picture of Independence

Structural definitions of judicial independence are mainly negative. They tell us what judicial independence is not, rather than what it is. By looking at what members of the executive or legislative branches of government cannot do, a structural approach indicates what is inconsistent with independence. A judge is independent in this view because the President cannot fire her and members of Congress cannot cut her salary nor transfer her to East Glockenspiel, Illinois solely to hear foreclosure cases. Structural understandings inform us of those things that impinge on judicial independence without revealing just what is being impinged upon.

That may be the best we can do; some things perhaps can only be defined by what they are not. Still, a judge might say, "One of the things I am paid to do as a judge is be independent, so it would be nice to know what that is." She might want to know what independence consists of, not only what it prevents others from doing. But those who write about the structural protection of independence seldom write about the independence of a single judge, they write instead about the independence of the judiciary. The title of this symposium is indicative: "Federal Judicial Independence" rather than, say, "Federal Judges' Independence."

We do not propose to advance understanding of independence by concluding that the key to knowledge lies in the distinction between "judicial independence" and "judge's independence," only the latter of which counts. It would be wonderful to find such a simple key, but the key does not work by itself. Nevertheless, the independence of a judge, as an individual adjudicator, is both an important and neglected concept that differs from the concept of the independence of the judiciary, as an institution. Nor are the two concepts entirely complementary. The institution of the judiciary imposes constraints on and directs the decisions of individual judges. An "independent judiciary" restrains the "independence of the judge." Unscrutinized when we look at the structural provisions of the Constitution are those interferences with a judge's independent adjudication that arise out of, for example, the actor's membership in the judiciary. This oversight is problematic in that, ultimately, all judicial acts are those of a single judge, even in a court where it takes the votes of five single justices to enter judgment. Defining independence by way of structure causes one to ignore a host of constraints on individual judges that stem from, among other things, the judiciary itself, legal culture, and the social environment of judges.

Even if structural analysis is not the only way to understand judicial independence, obviously structure always counts in this country. The text of the Constitution invites structural arguments, and all constitutional analysis must begin, everyone agrees, with the words of the text—though where it ends is subject to much debate. You read the document and though the Constitution does not use the words "judicial independence," Article III contains provisions assuring the tenure and salary of judges and you infer that this must be the root of judicial independence.

A structural approach is, however, likely to include only bits and pieces of what it is to be independent to a judge because it is inherently concerned only with the relationships between the branches of government. Consequently, it obscures the constraints on independence imposed on judges from within the judiciary. Even if the other branches of government cannot remove a judge from a case or mandate a certain decision's outcome, other judges may be able to do just that, either through disqualification or normal appellate proceedings. Some might say, well, that's a different story. But is it really? It doesn't much matter to the judge who restrains him, he is restrained. Who imposes these restraints and controls him may present a difference with regard to how the judge feels about the legitimacy of our governmental system, but there is little difference with regard to his...