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Wednesday, October 31, 2007

Let's Take Judicial Independence Seriously--Kerr's Criticism of Justice Ginsburg

Brian Tamanaha

Orin Kerr of Volokh Conspiracy has an editorial in the Wall Street Journal criticizing Justice Ginsburg for writing a dissent in Ledbetter v. Goodyear that she hoped would prompt legislative action. Kerr objects to this line in particular: "The ball is in Congress' court . . . to correct [the Supreme] Court's parsimonious reading of Title VII." As Kerr notes, in a recent address Justice Ginsburg revealed that her purpose was "to attract immediate public attention and to propel legislative change."

Kerr criticized Justice Ginsburg on the grounds that it is not the proper role of judges to urge legislation, and that “judicial independence” is a two way street—if judges want to be left alone to judge, they must leave legislators alone to legislate. Here is his argument in full:

To be clear, it's not newsworthy that Supreme Court justices have been and are influenced by their personal policy preferences. That much is human nature. But Justice Ginsburg is not saying that her own views may color her view of what the law is. Nor is she simply acknowledging her personal view that it would be good for Congress to amend the law in a particular way (a position I tentatively share). Rather, she seems to believe that she has a legitimate interest in her capacity as a Supreme Court Justice to push coequal branches of government to enact a new law that will be more to her personal liking.

This view seems hard to square with Justice Ginsburg's frequent invocations of "judicial independence," the notion that legislators should leave the judging to the judges. Justice Ginsburg has frequently criticized legislators--particularly conservatives--who have tried to influence the federal courts by regulating its jurisdiction or closely scrutinizing appointees on political grounds. According to Justice Ginsburg, these efforts threaten the constitutional order because they involve legislative overreaching into the sphere of the judiciary.

But shouldn't this be a two-way street? If it is improper for legislators to try to influence the outcomes of future cases, why is it perfectly OK for her as a Supreme Court justice to try to influence the outcomes of future legislation? I don't mean to be too harsh, but I do find her position quite puzzling. Some might argue that her view of her role really isn't surprising, and that we should expect Justice Ginsburg to try to influence Congress this way. But if that's true, doesn't it mean Justice Ginsburg's argument for judicial independence falls flat and that legislators are justified in trying to influence the decisions of the court? I don't see how you can have it both ways.

Kerr is an astute and usually sure-footed legal thinker, but his objection and his argument in support of it are surprising.

It is a standard understanding within our system—perhaps best formulated by the legal process school—that legislatures and courts develop the law in cooperation, trying to make the law the best it can be. It is not unusual for judicial opinions (at least in the subject I teach, torts) to include language specifically urging the legislature to address a particular problem. The notion that judges should be prohibited from doing this seems unnecessarily purist and self-defeating. Judges know better than anyone about flaws in, or unanticipated consequences of, statutory schemes, because such problems often do not become apparent until after the statutes are actually applied by judges in particular situations.

Kerr’s suggestion that judicial independence is a two-way street in this context is even more troublesome. A few lines in a dissenting opinion urging legislative action can simply be ignored by legislators; there is no hint of intimidation by Justice Ginsburg and no attempt to compromise their role or responsibility as legislators. Bringing "public attention" to the problem cannot be deemed a "threat" to legislators in any sense, as they are supposed to be responsive to public concerns. In contrast, legislative threats or actions that involve court stripping (and why not include threats of impeachment, which have also been directed at judges) are clearly intended to intimidate judges in a way that compromises their legal decisions. Furthermore, thoroughly politicizing the judiciary through the application of a political litmus test for appointments is a potential threat to the integrity of courts, particularly if judges appointed for political reasons come to believe it is appropriate to render politically motivated decisions.

Kerr should not erase these marked differences with a distorting “two way street” line. Judges are threatened all the time by executives and legislators, who wield the army and the purse. Executives and legislators are often frustrated by and irritated at judges, but rarely are they threatened by judges.

History—and a few contemporary legal systems—demonstrates that judicial independence is constantly endangered and therefore must be defended constantly. Justice Ginsburg’s argument for judicial independence, accordingly, does not “fall flat” just because of a line she inserted in a dissenting opinion.

[Addendum: Orin informed me of an exchange on this subject on Volokh Conspiracy. This WSJ editorial was taken from one of his posts. The links can be found in Mark's comment in the comment thread below--thanks, Mark.]

Comments:

For those interested in this issue, Prof. Kerr originally posted his thoughts at Volokh. That post can be found here and a follow-up here.
 

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Actually, it looks like the Wall Street Journal website has simply reprinted the original blog post, unaltered. It seems to be part of "OpinionJournal Federation."
 

I find this just baffling. Ginsburg thinks the majority *got the law wrong*; it makes perfect sense for her to draw the legislature's attention to this, saying, in effect, "the majority changed the law; if you want it to be what it was, it's now up to you to change it back." Kerr's follow-up Scalia hypothetical seems similarly unobjectionable.
 

I find this just baffling. Ginsburg thinks the majority *got the law wrong*; it makes perfect sense for her to draw the legislature's attention to this, saying, in effect, "the majority changed the law; if you want it to be what it was, it's now up to you to change it back." Kerr's follow-up Scalia hypothetical seems similarly unobjectionable.

I think that was the reaction of most commenters at Volokh.
 

I think that was the reaction of most commenters at Volokh.

Indeed.

Prof. Kerr, god bless 'im, occasionally seems to adhere to an ascetic theory of judicial behavior that ignores the fact that, FBOW, the Supreme Court is a coequal branch of government, not just a tribunal of last resort.

Having difficult cases resolved by judicial monks isolated on a mountaintop would arguably be an improvement in some respects, but I don't think that's ever been the case in America.
 

I find this just baffling. Ginsburg thinks the majority *got the law wrong*; it makes perfect sense for her to draw the legislature's attention to this, saying, in effect, "the majority changed the law; if you want it to be what it was, it's now up to you to change it back."

I think you miss Orin's point. Assuming arguendo that such would be acceptable behavior, Ginsburg went beyond that. She didn't just say, "If this was a mistake, Congress needs to fix it." She expressed the position that Congress should change it back, and went on to express disappointment that it hadn't done so, and annoyance with Bush for getting in the way of Congress doing so.
 

I agree with X. Trapnel.

Kerr's argument is based on a mischaracterization (over-simplification) of Ginsberg's argument: he begins his conclusion, "If it is improper for legislators to try to influence the outcomes of future cases . . . ." However, Ginsberg is not saying that it is improper to influence judicial outcomes, but to influence them using particular methods.

I have not heard Ginsberg object to Congress or the President attempting to influence the courts on the merits of a case (by filing an amicus brief, for example). Thus, it is entirely consisted for her to attempt influence the Legislature and President on the merits of legislation.

In contrast, it would improper for the Legislature to change judicial outcomes through withholding funds or restricting jurisdiction. Likewise, it would be improper for the courts to influence legislative outcomes by deciding cases in a partisan basis (Bush v. Gore, for example).
 

So, please, oh please, we beg, we pray, go throw your TV set away, and in its place you can install, a lovely bookcase on the wall.
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