Antitrust Policy and Interest-Group Politics

By William F. Shughart II | Go to book overview

6
The Judiciary

Probably no institution of democratic government is held as being more a thing apart from the political process than the judiciary. In the U.S. political system, the relative independence of judges is an article of faith for both critics and defenders of judicial decision making. Most observers would agree that the courts are effectively insulated from the influence of ordinary politics as a consequence of constitutional provisions that tend to limit the ability of other government branches to sway their decisions. At the federal level, for example, judges are granted life tenure and can only be removed from the bench by means of impeachment; at the state level, most judges serve for more limited periods but generally enjoy a high level of security insofar as they are difficult to remove from office prior to the expiration of their terms. Both state and federal judges face heavy sanctions in cases of detected corruption, and so it is not surprising that bribery is generally thought to play a negligible role in judicial decision making. In short, the conventional wisdom is that the judiciary is-- and, indeed, should be--above the fray of interest-group politics.

There are three major noneconomic views concerning the nature and consequences of judicial independence. The independence of the judiciary is sometimes portrayed as necessary to ensure that this branch of government functions as an effective counterweight to the legislative and executive branches. Put in simple terms, the role of the judiciary is to protect society from unconstitutional encroachments by the other branches, and judges are motivated to perform this function by concern for the public interest. Second, the independent judiciary is sometimes regarded as an agent not of the "general interest" but of the interests of groups (minorities) that are otherwise unrepresented (or underrepresented) in other political forums. Third, the independent judiciary is sometimes regarded as something of a "loose cannon." Richard Posner, for example, has argued that because judges receive no monetary gain from the way they decide cases, there is no incentive for them to slant their decisions in favor of any particular interest group. 1 He therefore concluded that there are no pecuniary or

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