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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts A Truly Independent Judiciary?
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Sunday, February 13, 2022
A Truly Independent Judiciary?
Guest Blogger
For the Balkinization symposium on Aziz Huq, The Collapse of Constitutional Remedies (Oxford University Press, 2021). Adam A. Davidson The Collapse of
Constitutional Remedies focuses on a too-often-ignored question about our
famously independent judiciary: Independent
to do what? Huq argues persuasively that through a combination of
institutional imperatives and personal political goals, the judiciary’s purported
independence has been used overwhelmingly to ration the limited resources of
legality and redress in regressive ways. The disempowered, often minority,
individuals subjected to the coercive force of the state have found the
courthouse doors shut, while firms seeking to undermine regulatory regimes have
been welcomed with open arms. Despite
the persuasiveness of this argument, I came away from Huq’s Coda thinking that
his prescriptions to fix this state of the world zigged when they might have
zagged. While Huq suggests taking advantage of the political branches’ power
over the judiciary, I wondered whether it might be better to head in the other
direction by making the judiciary truly independent. Huq’s
discussion of the history and politics of the judiciary suggested to me that
our famously independent judiciary is not, in fact, particularly independent at
all. Instead, it is reliant on the political branches for everything except its
power to persuade. Its members are chosen by political actors, and it cannot
determine its size, its budget, its structure, its ability to enforce its
orders, or do much at all with the exception of saying what it believes the law
to be. Huq’s
prescriptions for a shift to the political spheres make sense if we accept the
current constitutional baseline, but they nevertheless require a large
political lift. These political prescriptions require a difficult-to-imagine
political coalition that is strong enough to overcome the high bars of
structural disadvantage that progressives face in the form of the Senate, the
Electoral College, gerrymandering, and voter suppression. In addition, this
political coalition must be so “concerned with a more equitable and less
racially hierarchical society” that it is willing to aggressively alter the
judiciary’s power, even at the likely cost of some of the economic and social
power of the coalition’s white and economically advantaged members. Given the
large practical hurdles Huq’s suggestions must overcome, I do not think it imprudent
to expand our imaginations beyond our currently existing constitutional limits.
Instead,
perhaps what a racially pluralistic society requires is a truly independent
judiciary. In order to limit the effects of partisan politics, this could mean
a judiciary with the power to choose who replenishes its ranks; like a more
aggressive version of Daniel Epps and Ganesh Sitaraman’s proposal for a fifteen
member Supreme Court. See Daniel
Epps, Ganesh Sitaraman, How to Save the
Supreme Court, 129 Yale L.J. 148, 193 (2019). Going further, an independent
judiciary would likely need to have the authority to expand its ranks, so as to
avoid the need to limit remedies in order to manage the judicial workload. And
a truly independent judiciary would almost certainly need control over some
form of state-sanctioned force in order to enforce its orders without relying
on other government branches. In this world, Ruby Bridges would not have had to
count on the political courage of President Eisenhower; the judiciary itself
could have protected her. Similarly, an independent judiciary would need the
power to tax, so that its funding could not be cut when it made unpopular
decisions. If,
as William Stuntz once wrote, “John Hart Ely had it about right: constitutional
law adds the most value when it advances interests that the political process
will not advance on its own,” William J. Stuntz, The Political Constitution of Criminal Justice, 119 Harv. L. Rev.
780, 818 (2006), then it seems a turn towards a more aggressively independent
judiciary might be exactly what is needed. Freed from the political battles of
the day, this hyper-independent judiciary might feel empowered to finally make
true the old adage that for every right there must be a remedy. But there is no
guarantee that even a truly independent judiciary would issue the sorts of
rights-expanding decisions Huq suggests it should. To
figure out why, it is helpful to turn towards another area of law. This sort of
institutional design problem is not limited to the federal judiciary. It also
occurs in the state and local government space with emergency managers. At first
glance, these emergency managers would seem like a great proxy for an
independent judiciary. At their strongest, they are empowered by the State to
take control of a city with powers and responsibilities that rival or exceed
those of the most activist judges. Moreover, they are politically unaccountable
to the people they oversee. To the extent they are responsive to popular
demands, it is because they choose to be, not because they have to be. Emergency
managers in Michigan are the paradigmatic examples of this phenomenon. There,
state statutes have allowed for the creation of emergency managers with the
power to seize control of a locality’s entire political apparatus. When Kevyn
Orr was appointed emergency manager of Detroit the elected officials in that
city took on an, at most, advisory role. Orr was empowered by the state to do
what he believed necessary to solve the fiscal crisis in his ward. Freed from
the risk of political blowback from constituents, Orr took aggressive steps to
rectify his charge’s budget woes. These included lessening city workers’
pension and benefits entitlements, privatizing
public services,
and ultimately quickly
shepherding
Detroit through the municipal bankruptcy process. Many, though certainly not
all, lauded Orr for taking
tough, but necessary actions to set Detroit onto a better financial footing.
Indeed, Orr’s success in Detroit might suggest that a level of true
independence is what is necessary for an actor to take the sorts of
countermajoritarian actions that the Warren Court has been lauded for. But
this, of course, is not the whole story. Looking at the story of emergency
management in Detroit through another lens illuminates that neither Orr nor any
other Michigan emergency manager has ever been truly independent or able to
pursue all paths for improving their cities. While Orr did not have to answer
to the citizens of Detroit, he did have to answer to someone else: Republican
governor Rick Snyder. That is because Orr, like all Michigan emergency
managers, could be removed at will by the governor. And this removal power was
not illusory. As one emergency manager from Pontiac, Michigan recounted, he
felt “enormous” political pressures, and “phone
calls from the Deputy State Treasurer, whose boss is appointed by the Governor,
[were] not uncommon to make powerful ‘suggestions’ on how the Emergency Manager
should do his job.” McKillop
Bradford Erlandson, Note, Revisiting
Progressive Federalism: Voice, Exit, and Endless Money, 68 U. Miami L. Rev. 853, 873-74 (2014). And while Orr may have taken drastic
steps to right-size Detroit, the steps he could take were ultimately limited by
the scope of his jurisdiction and powers. The story of Detroit’s fiscal decline
is not solely one of financial mismanagement and corruption (though there is
some of that). Instead, aided by the Supreme Court’s withdrawal from the
anti-segregation project, wealthy, disproportionately white families fled the
city’s boundaries to the suburbs. Combined with the decline of manufacturing in
the region, this left Detroit both more racially segregated and poorer than it
otherwise would have been. Though Orr was empowered by the
state, he had no power to reach beyond Detroit’s boundaries to, for example,
capture some of the tax revenues Detroit lost due to white flight. The tools
available to him meant that he could rectify Detroit’s problems primarily
through the historically conservative tools of benefit cuts and privatization.
Even the “Grand Bargain” he orchestrated, which brought in over a billion dollars
to alleviate the hit to pensioners and city employees, came at the cost of removing the Detroit Institute of Art from the city’s ownership. Ultimately, I believe that this
story illuminates a difficult reality for all of our institutions. Independence
is a myth. No matter how hard we may try, we cannot entirely separate off one
actor or one institution from the rest of our society. Indeed, it is not clear
that we would ever want to. The real questions are not about any
given institution’s independence, it is to whom are they accountable and whom
can they ignore? Kevyn Orr could ignore the Blacker, poorer residents of
Detroit if he wished. But he could not ignore, and he was powerless to affect,
Governor Snyder and the whiter, richer constituents of Michigan outside of
Detroit who voted the governor into office. Likewise, even the fantastically
independent judiciary that I attempted to build earlier in this blog post is
not totally independent. For example, they remain tied to whatever police or
military-style group has the power to enforce their orders, and so they could
only go so far lest that group rebelled. More broadly, the history of humanity
is full of revolutions that prove that even the most isolated government actors
may fall at the hands of a sufficiently motivated populace. And so as we come to this inflection
point in the history of our judiciary, we should perhaps shift our focus from
questions of independence to questions of accountability. If we believe that
our judiciary’s highest and best use is to protect minorities and others
without power from the coercive force of the state, then we should ensure that
the judiciary is accountable to those people. Perhaps, as Huq suggests, that
means shifting power to the political branches and away from the judiciary, at
least as an immediate solution to the current composition of our judiciary. But
given that the groups in question are often not merely small in size but
lacking in political power as well, perhaps a more expansive, empowered
judiciary is in order as a longer-term fix. By contrast, if the judiciary is
meant to check the regulatory expansion of the political branches, then Huq’s
account suggests we are already on the right track. Whichever path we choose, The Collapse of Constitutional Remedies
shines an important light on the institutional design of the judiciary and how
that design has encouraged our “independent” judiciary to empower some
litigants’ constitutional claims and shun others’. Reconsidering that design
through the lens of accountability may suggest previously unseen ways forward. Adam A. Davidson is a Harry A. Bigelow
Teaching Fellow and Lecturer in Law at the University of Chicago Law School. He
can be reached by email at davidsona@uchicago.edu.
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