Article excerpt

The use of inherent judicial powers to make up budget shortfalls raises fundamental questions about judicial independence and the nature of the separation of powers.

Money lies at the root of many conflicts between the branches of government. It is at the heart of many policy disputes-as different interests, political parties, and government officials stake out divergent priorities in the raising and spending of public funds-and creates substantial institutional tensions within any system of separated powers. In such systems, the legislature rightfully holds the "power of the purse," given the intimate connection between effective democratic representation and control over government taxation and spending. Indeed, the mother of all legislatures, the British Parliament, largely came into existence in order to expand and legitimate the flow of revenue into government coffers.

As the very example of the birth and growth of Parliament indicates, however, control over the treasury is a powerful political weapon that can be used against other government institutions. In controlling the purse strings, the legislature can reward or punish members of the executive and judicial branches, depending on how they conduct their offices. As James Madison noted in explaining the operation of constitutional checks and balances, "the legislative department alone has access to the pockets of the people."1

An effective power of the purse gives the legislature a powerful trump card when disagreements arise between it and the other branches of government, one that is so potent that it can threaten judicial independence. To limit this threat, the American founders wrote into the U.S. Constitution the guarantee that salaries of judges shall not be diminished during their time in office. (Although such a guarantee is common in American state constitutions and endorsed by the United Nations, worldwide it is one of the least-used constitutional provisions for securing judicial independence.2) Though important to preserving the independence of individual judges to make controversial decisions, the guarantee of undiminished salaries remains fairly marginal to the central conflicts between courts and legislatures over money and the ability of the judiciary to serve as an effective and independent branch of government. In extreme cases, judges may be denied such basics as an office, an adequate supply of paper, and an up-to-date compendium of statutes.3 Fortunately, American judges are rarely faced with such deprivation, but the adequacy of resources provided by legislatures to handle judicial business continues to be a contentious issue-especially in the states.

A new challenge is emerging in this recurrent struggle between legislatures and judiciaries over resources. During the past three decades, administrative and budget authority over state judicial systems have been concentrated in slate supreme courts. As a consequence, tough budgeting decisions increasingly invite direct confrontations between the heads of the legislative and judicial branches of state governments. The possibility of a constitutional standoff now looms in the states as centrali/.ed judicial administrations combine their institutional muscle with the doctrine of inherent judicial powers to secure their own funding when state legislatures are either unable or unwilling to authorize adequate appropriations. This convergence of contemporary bureaucratic and fiscal reality with fundamental constitutional principle- threatens to dilute traditional notions of the legislative power of the purse.

Kansas has recently provided a glimpse of this possibility. On March H, 2002, Chief Justice Kay McFarland of the Kansas Supreme Court ordered an across-the-board increase in court fees in the state. This "emergency surcharge" was aimed at making up a $3.5 million shortfall in the judiciary's fiscal year 2003 budget, which was itself dwarfed by the state's broader projected deficit of $680 million for that fiscal year. …