judicial independence

Independence for whom?

Judicial independence can be defined as a characteristic of individual judges or as a characteristic of the judiciary as a whole. Neither conception is indisputably preferable to the other as a practical matter. On the one hand, if judicial independence is guaranteed at the institutional level but not at the individual level, individual judges can be forced to obey the wishes of the leadership of the judiciary, which may result in a less-than-wholehearted enforcement of the rule of law. In Chile and Japan, for example, the extent to which the judiciary as an institution commands obedience and conformity from its members has been blamed for producing timid judges who are unwilling or unable to rule against the government. On the other hand, if judicial independence is ensured at the individual level, individual judges will find themselves at liberty to pursue their individual preferences. Unchecked discretion of that kind not only invites abuse but also raises the likelihood that judges will decide cases in inconsistent ways, with the potential effect of undermining the predictability and stability of the law.

Independence from whom?

The existence and adequacy of judicial independence become matters of practical concern only when a court decides a dispute involving the interests of some actor or institution with potential or actual power over the court. Generally speaking, the more powerful the actor whose interests are at stake, the greater the need to protect the independence of the court from that actor. If both sides to the dispute are powerful, however, that symmetry of power may provide part or all of the necessary protection.

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The three scenarios that a court may encounter are:

1. disputes between private actors,
2. disputes between government actors, and
3. disputes between private actors and government actors.

In the first scenario, the court must strive to remain independent from the parties, who may attempt to undermine its independence by a variety of means, such as bribery or intimidation. In that situation the government is a friend of judicial independence: it can be expected to defend the independence of the court from the efforts of the parties.

In the second scenario, the prospects for judicial independence are again relatively favourable. The court is asked not to face down a powerful actor on behalf of a weak one but rather to choose sides between two powerful actors in an impartial way. Whichever side the court chooses, the result will be a two-against-one dynamic that ought to provide the court a degree of protection from retaliation. The government does not pose a meaningful threat to judicial independence in such cases, because it is at war with itself.

In the third scenario, the government does pose a potent threat to judicial independence, but the threat may be either counteracted or compounded by the public. For instance, if a ruler seeks to extend his or her own term of office in an illegal fashion, the court faces a threat to its independence from the government, but its ability to withstand that threat is greatly improved to the extent that it can count on public support if it rules against the government. As long as the court is in the position of siding with either the government or the public, its independence enjoys protection. Either should be capable of providing the court with the support that it needs to withstand attacks from the other. In other situations, however, the court may be asked to take a position that is antagonistic to both the government and the public, as in the case of illegal government discrimination against an unpopular minority. Here the prospects for judicial independence are at their nadir: the judiciary is called on to demonstrate independence from both the government and the public, yet it lacks the help of a powerful ally to withstand the pressures that it faces.

There are various ways to protect judicial independence in the face of such threats. Common strategies include limiting government discretion over judicial salaries, placing heavy restrictions on the removal of judges from office, fixing the minimum jurisdiction that courts are to possess, and relieving judges of personal liability for acts performed in the course of their duties. Less obviously, the internal organization of a judiciary can also have a profound effect on its susceptibility to external influence. The organization of the Japanese judiciary, for example, renders lower court judges highly obedient to an administrative bureaucracy controlled by the chief justice of the Supreme Court of Japan. A decentralized organizational structure that grants greater autonomy to individual judges, by contrast, may make it harder for the government to capture or co-opt the judiciary as a whole.

In the long run, however, it is difficult, if not impossible, to create a perfectly independent judiciary that is completely insulated from all forms of political and popular influence. The relatively lengthy experience of the U.S. Supreme Court, for instance, suggests that even a highly independent court is likely over time both to be reshaped by political forces and to accommodate the wishes of a durable political majority. It is optimistic to think that a handful of judges, lacking the power of either the purse or the sword, could consistently defy more-powerful actors and institutions without ever suffering any consequences, no matter what formal protections they might enjoy. There are limits to what can be accomplished simply by adjusting the institutional characteristics of the judiciary or by enacting solemn declarations about the inviolability of judicial independence. Ultimately, the prospects for attaining even moderate levels of judicial independence are likely to depend on political and historical conditions that are exogenous to the judiciary and may well lie beyond reach, such as the existence of a stable, competitive, multiparty democracy.

Independence from what?

Not all forms of influence over judicial decision making constitute threats to judicial independence. Whereas some activities aimed at influencing courts, such as bribery and intimidation, may be inappropriate under any plausible conception of judicial independence, others can be evaluated only on the basis of contestable normative judgments. In the case of public protests in front of courthouses, for example, one view might be that such protests should be privileged as a form of political expression and that judges in a democracy are permitted or even obligated to take public opinion into account. Alternatively, one might take the view that judges should be shielded from such expressions of public opinion, much as jurors are sequestered, to ensure that their deliberations are not tainted by considerations that ought to be irrelevant. Likewise, a public campaign to deny a judge reelection because he has ruled in unpopular ways on controversial issues can be characterized as either a healthy manifestation of democracy or as a threat to judicial independence.

Whether such efforts to influence judicial decision making are consistent with judicial independence cannot be answered by fiat. Defining the requirements of judicial independence in such cases demands instead a normative theory of what courts are supposed to take into account when deciding cases, what judicial independence is supposed to achieve, and to what extent judicial independence can and should be balanced against other objectives and considerations.

Independence for what purpose?

Judicial independence is generally considered a means to an end rather than an end in itself. Most would probably agree that the ultimate goal can be described as the fair and impartial adjudication of disputes in accordance with law. If that is indeed the goal, however, then the pursuit of judicial independence is open to several objections.

One objection is that the goal itself is unattainable, because it rests on a misconception of the nature of both law and adjudication. It is a commonly held view among legal theorists that the law is frequently indeterminate and that it is therefore impossible for judges to decide disputes simply by applying preexisting law. Rather, it is said, the act of adjudication requires judges to make the very law that they purport to merely apply. Yet if adjudication necessarily entails lawmaking, then judicial independence does not simply protect the ability of judges to decide disputes in accordance with law but instead licenses them to make and impose whatever laws they see fit, which is a prospect that many consider incompatible with either the appropriate role of judges in a democracy or the idea of separation of powers.

Another objection is that judicial independence is neither necessary nor sufficient to ensure impartial adjudication in accordance with law and may even undermine that goal if left unchecked. On the one hand, it is possible for a judge who faces potential retaliation to nevertheless decide cases in an impartial manner. On the other hand, there is no guarantee that giving judges the freedom to decide cases as they wish means that they will choose to do so fairly and in accordance with law. Even if it were possible to create a judiciary that is completely free from both popular and political control, what would then prevent the judges from deciding cases on the basis of personal prejudice or self-interest? It is on the basis of such concerns that many consider it essential to balance judicial independence against judicial accountability and to distinguish appropriate forms of influence over the judiciary from inappropriate forms. However, any mechanism that might be devised for preventing or punishing judicial abuse of power is itself likely to prove susceptible to abuse. The resulting question of how to oversee the judges who are responsible for overseeing the government—quis custodiet ipsos custodes (Latin: “Who watches the watchers?”)—has long vexed constitutional and political theorists and admits of no simple solution.