Judicial Independence

The Role of Politics and the Rule of Law

On the eve of the 2004 presidential election, a standing-room-only crowd of some 1,700 Stanford alumni gathered at Memorial Auditorium to participate in a spirited and stimulating discussion on judicial independence. The panel was moderated by Dean Larry D. Kramer and included three judges, all Stanford alumni, from the nation's highest courts: Hon. Stephen Breyer (BA '59), Hon. Ronald M. George '64, and Hon. Pamela A. Rymer '64.

Kramer: The topic today is judicial independence and the role of politics. This has been an issue in American history from the beginning. In the 1780s, before the Constitution was adopted, there were enormous battles in the states over the role of courts, as judges made their first embryonic efforts to exercise something like judicial review. Those battles grew in the 1790s and became one of the central political issues in one of the most divisive periods in American history. The famous case of Marbury v. Madison, which is today often mis-cited as the origin of judicial review, was the signal event in the court's retreat from what amounted to a major political assault by the Jeffersonians. That began a series of cycles that have run across American history as judges and legislators and presidents have had at it-whether it was the Dred Scott decision in the 1850s, or the fight over the New Deal and FDR's famous court-packing plan.

We're now in the middle of one of these cycles, which began with the decision of the Warren Court in Brown in 1954, and has seesawed back and forth ever since. The last 10 years have seen the question of judicial role grow into a much more important issue, with what academics have started to call the second Rehnquist Court. This was the beginning of a period of activism, striking down federal statutes on federalism grounds, while continuing to exercise the Court's authority on issues of human and civil rights. There have been an equally great number of controversies in the states, such as the fight in California over the death penalty, and the battles in Texas over the elected judiciary.

At the same time, there have been significant developments in international law. Courts around the world have begun to follow the American example in exercising judicial review-in some countries with ease, in others with the same kind of controversy we saw here. The creation of new international courts has thrust courts into the forefront of political fights over the proper role of judicialized justice in bringing about international peace and in bringing international criminals to heel.

On almost every front, then, we're in the middle of a process of trying to figure out what kind of authority we want courts to have. Judge Rymer is on a court that has been at the center of quite a lot of controversy in recent years, most recently in the Pledge of Allegiance case. Let me put the question to you, Judge Rymer. Do you think judges are too independent?

Rymer: Well, we're probably not independent enough of Justice Breyer's court [laughter]. And probably the Chief Justice would say that he's not independent enough of us and our habeas jurisdiction. . . . My activist colleagues would probably say that the judge's primary role is to protect individual rights and to achieve social justice, that social justice is the guiding principle of the judicial branch. And they would say that they should view the Constitution as a set of very broad principles to be interpreted in light of contemporary problems. In my own view, this kind of judicial philosophy leads a judge . . . to behave more like a legislator than like a judge.

My own view is that the judicial model is preferable to a legislative model of judging, where judges bring judgment-as Hamilton said in Federalist 78-not will, to bear on discrete issues that are presented to a court for decision in the context of the particular facts in which the case arises. That we make decisions which are channeled by precedent and are constrained by our duty to declare and to apply the law as it is, rather than how we as a matter of personal interest, would prefer that it be. And that the Constitution sets out powers and rights that are to be interpreted on a reasoned basis from a particular constitutional provision, informed by history and constitutional precedent and subtle understanding of what the text of the Constitution means.

Over time this leads to a more consistent, coherent, predictable development of the law for the jurisdiction. It does have an effect on judicial independence because to the extent that courts behave more like a legislature and make policy decisions to achieve an individual judge's view of social justice, we do begin to traipse on the legislative turf, and that in turn inspires the real legislative body to get a bit upset. . . . It also tends to undermine public confidence in the role of the courts, because it is not acting within our basic confines of making decisions based on judgment.

Kramer: Let's talk a little more about what you mean by activism. Does that mean that a conservative judge who purports to be making those decisions based on original intent and text isn't being an activist, even when he or she is striking down laws? Is it only the sort of judge who views the job as trying to achieve social justice that is exhibiting activism, but the other kind of judge is not?

George: [Judicial] activism, like many things, is in the eyes of the beholder, and sometimes boils down to whose ox is getting gored. But I would echo the comments made by Judge Rymer with regard to there being doctrinal reasons based on the constitutional doctrine of separation of powers, for judges not overstepping whatever activism is, [for] not improperly encroaching on the role of the other branches of government. But also, as was her suggestion, there are pragmatic reasons for avoiding overreaching activism. And those involve the fact that the Federalist Papers do describe the judiciary as the weakest branch of government. Some would quarrel and say it's the strongest, but regardless, it is the most vulnerable in terms of retaliation by the other two branches. So to the extent that the judiciary is excessively activist, it invites that kind of behavior by the other branches, and then impairs the role of the judiciary as a separate and coequal branch of government.

Breyer: One of the problems of judicial independence is how you get a system for identifying some bad apples without threatening the independence of the judges. The answer to that is very complicated. We have life tenure. That's what Jefferson said about the Supreme Court. He said, "They never retire, and they rarely die." You have that system, too, in the federal courts. And it's worked pretty well.

You [motioning to George] have a somewhat different system. One of the problems in the state courts in America at the moment is, what do we do about elected judges? Think of a very, very unpopular criminal defendant or civil case, what's your reaction going to be? Does that person deserve a fair trial? You'll say "yes." But if he's unpopular enough you'll say, "But not him." It's not that easy for a judge to conduct a fair trial if he's up for election next week. That's a problem of judicial independence.

Now, a different problem is what you're calling judicial activism. By judicial activism what you mean is, in part, a judge who doesn't decide it the way I'd like him to decide it. . . . My brother is a federal judge in San Francisco. He says, "You know, it's wonderful. I don't have to convince any colleagues." Ah, but he's subject to review, by three or by a big panel. And I do have colleagues I have to convince. I have to get at least four others -that makes five-five is an important number in my life. I often say to my wife, Joanna, "I've written a dissent this time that will soon be a majority, because it will convince five."

Learned Hand pointed [out] when someone asked him that question. He said, "Those books on that wall. It's called precedent. It's called the rules of law." They don't answer the questions in our court, not many in yours [motioning to George], and few in yours [motioning to Rymer], but they give us a clue, and they try to hold us in check, and they try to define the area where there are legitimate differences. And all I can say is, in my experience, . . . judges whom I've met by and large try. They come to different conclusions, but they by and large try. If too many don't, there will be changes in that complex system that we've built up over 200 years, because it is a democracy, and I would not like to see changes that weaken the independent authority of the judiciary.

This article is an edited transcript of the beginning of the panel discussion. An unedited transcript and video of the entire panel is available at www.law.stanford.edu/events/recordings.html.