Judicial independence and pragmatism

Ramesh Ponnuru and Robert P. George think seriously about judicial independence and the state of our courts. They argue that the real debate is not over whether judicial independence is desirable but over what judicial independence, properly considered, really means. The authors contend that judicial independence means that judges are free to make decisions they believe follow the law. In addition, it means that the judges’ decisions will be binding on the parties, including the executive branch when it is a party. But Ponnuru and George deny that judicial independence means that the courts’ say on constitutional meaning cannot be challenged, or that it is fixed for all time. Nor does it mean that the only legitimate methods of checking the power of courts are through appointment and amendment (as Chief Justice Rehnquist has suggested). Other checks, in particular limiting federal court jurisdiction, can be applied without limiting judicial independence, properly understood. Whether Congress should resort to this check (and others) depends on its efficacy and on whether the courts are acting abusively.
As a pragmatist, my view is that the ability of all elements of the government to exercise power in the way they historically have depends to some extent (and should) on whether the element in question has acted abusively. A president who nominates bad judges or judges outside the mainstream of his party can expect that the nominees will have a tough time of it, and that the opposition may even try previously unused tactics to defeat them. A Senate minority that uses a tactic like the filibuster to excess can expect that the majority will try, and maybe even succeed, in eliminating the right to conduct such filibusters. A judiciary that consistently attempts to impose its policy preferences without proper regard for traditional modes of constitutional adjudication (for example, by looking to foreign law) can expect that politicians will propose means of checking the judiciary that have seldom if ever been employed. And a Congress that tries to trim judicial power in the absence of serious judicial abuse can expect the opposition to scream bloody murder in the hope of forcing the majority to pay a price at the polls. Since all of the “corrective” measures I have described are available under the law, and since none is irreversible in our democracy, this is as it should be.
Conservatives believe that the first and third abuses described above are occurring now. Liberals believe it’s the second and fourth. Both sides are acting accordingly. If this continues, it will be for the voters to determine which side is correct.


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