Academic

Schwarzschild on Judicial Independence

By Lawrence Solum

Maimon Schwarzschild (University of San Diego School of Law) has posted Judicial Independence vs. Judicial Independence (THE CULTURE OF JUDICIAL INDEPENDENCE: CONCEPTUAL FOUNDATIONS AND PRACTICAL CHALLENGES, Brill Publishers, Forthcoming) on SSRN. Here is the abstract:

Judicial independence is a cornerstone of liberal government, of good government, and of the rule of law. It might seem perverse, therefore, to suggest that judicial independence is not unequivocally a good thing. But judicial independence can also be a euphemism for judicial over-reaching and abuse of authority: an indefensible sort of independence. That sort of independence tends in the long run to undermine judicial independence in the good sense.

There is a growing tendency in many developed countries for courts to assume the role of deciding controversial questions of public policy. The US Supreme Court has been something of a model for this. Partly as a result of this trend, and partly further promoting it, the higher courts in the US and in other countries do less ordinary judicial work than they used to do. International legal institutions, and enthusiasm for international norms, tend in various ways to foster these trends.

But judges are entitled to special immunities that others do not enjoy only so long as they act as judges: that is, only so long as they interpret and apply the law in a way that conforms, within somewhat ill-defined limits, to the morality of law.

When judges follow a model of judging which too often exceeds those limits, the claim for judicial independence and deference is less and less plausible. If judges around the world are encouraged - by academic opinion, by the Zeitgeist in the political elites, by international lawyers and pressure groups - to overstep their authority, and especially if the judiciary is seen to be a partisan force in the great political and cultural disputes of the era, then democratic public opinion is liable, sooner or later, to ensure that there will be less judicial independence, not more. That, sadly, will be as it ought to be.

Recommended.

Full post as published by Legal Theory Blog on October 29, 2010 (boomark / email).