Judicial Independence
The Role of Politics and the Rule of Law
 

Leland Stanford Junior University
2005


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.