This article was first posted on The Philadelphia Inquirer website on September 17, 2017.
There were judges before there were legislatures and probably before there were kings. No society can peaceably exist without a trusted tribunal to mark the boundary between one person’s rights and another’s. Who owns that ox? Where is the boundary of your land? Did that man break a promise? Did that woman’s carelessness injure her neighbor? Was that killing in self-defense, or was it murder? The judges of ancient Israel sat at the city gates to hear and decide disputes of this sort, and if they were good at their jobs, they dispensed justice fairly, without fear or favor.
In modern constitutional regimes, there arise a new kind of dispute: between agents of the state and individual citizens. In authoritarian regimes, the reach of state power is set by the will of the ruler. In a constitutional regime, it is cabined by law. But unless there are judges independent of the ruler, the limits on the power of the ruler will be unenforceable. To do their jobs properly, judges must be not only fair and dispassionate, but independent.
Moreover, the judges have to apply settled rules known to the community. They cannot apply one rule to Smith and another to Vandermeer. If it is a society governed by longstanding custom, the judges must be faithful to the custom. If it is a society with a legislative power, the judges must be faithful to enacted law. If they apply something else, they are not judging according to law. They are not doing their jobs.
The Framers of the U.S. Constitution were acutely aware of the need for dispassionate and independent judges. Before independence, colonial judges appointed by the Crown served at the pleasure of the colonial governors and were their creatures. That is no way to achieve the rule of law. The Framers — many of them lawyers — carefully created a system in which judges would be named to the bench on the basis of ability and experience and would serve for life, thus guaranteeing them independence of whomever might be in power. The system has been a success: No other country in the world has a judiciary as talented and as independent as ours.
But there are dangers, some of them of recent vintage and some more long-standing.
First is the politicization of the confirmation process for judges. There was a time when judicial nominees were evaluated on the basis of ability, experience, and judicial temperament — not partisan affiliation. Starting in the 1980s and getting worse with each presidential administration, judicial nominees have been increasingly assessed through the lens of politics. Just a week ago, Sen. Al Franken of Minnesota declared his opposition to a highly qualified judge of impeccable record simply because of partisan political disagreement with the Trump administration. Should that practice become routine, our independent judiciary would be sacrificed on the altar of partisanship.
Second, many of the responsibilities of the independent judiciary have been assigned to administrative law judges in the executive branch who have no guarantees against being demoted or fired if they decide against their agency heads. Moreover, the Supreme Court has embraced the idea that interpretations of statutes by the executive branch are entitled to a strong form of “deference,” rather than judged dispassionately according to the judges’ best understanding of the law. Both of these features of the administrative state make it difficult for citizens who have conflicts with the bureaucracy to get a fair hearing.
Third, the courts themselves have retreated from the idea that their job is to enforce rules written by others — by legislators or by the Framers and ratifiers of the Constitution. Instead, they have sometimes taken it upon themselves to decide questions of social policy according to their own ideals of liberty, equality, or human dignity. When that happens, the judges cease to be a separate judicial branch of government but become a kind of unelected super-legislature, more like the House of Lords than a court. It is no wonder the political branches respond to political decisions by treating courts as political footballs.
Alexander Hamilton in The Federalist famously described the judiciary as “the least dangerous branch” on the ground that it exercises neither “force” nor “will” but only “judgment.” That benign characterization applies, however, only when courts behave as courts. When they make policy choices on the basis of their own beliefs rather than legal principles laid down by others, they pose the danger of unaccountable government — government by officials neither answerable to the people through elections nor answerable to genuine courts for conformity to legal limits. In a democratic republic, the fundamental responsibility of courts is to ensure that officials of the state conform to the wishes of the people, as expressed through enacted laws and the Constitution. It is not to ensure that the will of the people conforms to the more enlightened sentiments of judges.
Michael W. McConnell is the Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School, and a Senior Fellow at the Hoover Institution. He served as a Circuit Judge on the United States Court of Appeals for the Tenth Circuit (2002-2009) before joining the faculty at Stanford.