The War on Courts and Other Wars

Judicature, January/February 2007 | Go to article overview

The War on Courts and Other Wars


Recent attempts to hold courts, judges and judicial aspirants "accountable" and to strip courts of jurisdiction to decide certain types of cases reflect a view of judges as policy agents serving a temporary majority, and a similar attempt to insulate that majority from both the past and the future.

In a number of recent editorials we have emphasized the critical importance of judicial accountability to the maintenance of judicial independence. In doing so we have been at pains to distinguish between forms and methods of accountability that are consistent with our constitutional traditions and those that are hostile to or inconsistent with our traditions. Unfortunately, in recent years the latter have come to dominate public discourse, as political actors with particular agendas for the judiciary in contemporary culture wars-both elected politicians and interest groups-drape themselves in the flag of judicial accountability when in fact they are seeking judicial subservience to their will.

These calls for judicial accountability have manifested in different ways, from threats to hold the federal courts "accountable" in the wake of the Schiavo litigation, to claims of a congressional power of "oversight" over individual federal judges, to a proposed "Inspector General" for the federal courts. At both the federal and state levels, they have also taken the form of attempts to ensure that aspirants to judicial office would decide highly salient issues reliably. When such attempts involve judicial questionnaires, those seeking answers are likely to use rhetoric about accountability and to make appeals to the First Amendment which confuse behavior that must be tolerated under the Constitution with behavior that is normatively desirable.

However various the manifestations of these current calls for judicial accountability, they reflect one common-and very pernicious-idea, namely that judges are policy agents whose job is to implement the will of today's majority on particular issues. The same animating idea, we believe, accounts for legislation stripping the courts of jurisdiction to hear disputes of various kinds, from cases brought concerning wholly domestic issues to cases brought by those implicated in the war on terrorism. In both we see a profoundly anti-constitutional attempt to insulate the will of the current majority against both the past (precedent) and the future (evolving standards). That some involved in these campaigns seek protection in the very courts and the very Constitution they would neuter for others is but one indication that the campaigns themselves are not concerned with the public interest.

Another indication of how badly campaigns to ensure conformity with particular policy views serve the public interest was recently provided by the remarks of a high government official. Expanding the universe of policy agents to be held accountable from courts to lawyers, this individual called for a boycott, and impugned the motives and integrity, of attorneys who have represented Guantanamo Bay detainees. AJS' President, Neal Sonnett, characterized the remarks in question as "shameful and inappropriate." We are pleased that many others expressed similar views and that this deep and widespread disapproval led to the official's recent resignation-an instance of good, old-fashioned accountability. …

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