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

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