Recent years have witnessed attacks on the courts, federal and state, that have been notable for both their frequency and their stridency.1 Many of these attacks have been part of strategies calculated to create and sustain an impression of judges that makes courts fodder for electoral politics. The strategies reflect a theory of judicial agency, the idea that judges are a means to an end, and that it is appropriate to pursue chosen ends through the selection of judges who are committed or will commit to them in advance. The architects of these strategies seek to create the impression not only that courts are part of the political system, but also that courts and the judges who sit on the bench are part of ordinary politics.
At the federal level, pursuit of these strategies prompts politicians to curry favor by promising to hold courts and judges accountable: staffing courts (or ensuring that they are staffed) with reliable judges, monitoring them through “oversight,” and, when they stray, reining them in through the instruments of politics–ordinary or extraordinary (impeachment). At both the federal and state levels, these strategies enable interest groups to wield influence by framing judicial selection in terms of the supposed causal influence of a vote in favor of or against a judicial nominee or candidate on results in high salience cases, such as those involving the death penalty or abortion.
What is the precise nature and extent of the threat to judicial independence? How, in the conduct of interbranch relations, should the judiciary respond to the impulses and incentives, both legitimate and illegitimate, that have brought us to this unhappy point in interbranch relations? Successful interbranch relations require the institutional judiciary to avoid the attitudes and techniques of contemporary politics, but not to avoid politics altogether.2 In essence, judicial accountability, properly conceived, plays . . .
- 1A modified version of this essay first appeared in The Georgetown Law Journal 95 (4) (2007). Arlin Adams, Barry Friedman, Charles Geyh, Robert Katzmann, and Carolyn King provided helpful comments on a draft.
- 2This essay draws on (without frequent citation to) my interdisciplinary work exploring judicial independence and judicial accountability and the implications for the future of theoretical and empirical research concerning interest groups and public knowledge of and attitudes toward courts. For a more comprehensive presentation of some of my arguments, see Stephen B. Burbank and Barry Friedman, eds., Judicial Independence at the Crossroads: An Interdisciplinary Approach (Thousand Oaks, Calif.: Sage Publications, 2002); Stephen B. Burbank, “Alternative Career Resolution II: Changing the Tenure of Supreme Court Justices,” University of Pennsylvania Law Review 154 (2006): 1511; Stephen B. Burbank, “The Architecture of Judicial Independence,” Southern California Law Review 72 (1999): 315; Stephen B. Burbank, “What Do We Mean by ‘Judicial Independence’?” Ohio State Law Journal 64 (2003): 323. I also draw on work in which I have explored the writings and career of a distinguished federal judge. See Stephen B. Burbank, “Judicial Accountability to the Past, Present, and Future: Precedent, Politics, and Power,” University of Arkansas at Little Rock Law Review 28 (2005): 19.