Academic journal article The University of Memphis Law Review

Judicial Independence: Theory and Practice

Academic journal article The University of Memphis Law Review

Judicial Independence: Theory and Practice

Article excerpt

PANEL DISCUSSION*

PROF. JOHN NEWMAN1 (CO-MODERATOR): I'd like to start us offwith one question, then we'll open it up to all of you. But before I launch into that question, I'd like to start with a quote from, presumably, our newest Supreme Court Justice, Neil Gorsuch-the Senate confirmed his nomination this morning. In a case called Kay Electric Cooperative v. City of Newkirk, Judge-then-Tenth Circuit Judge Gorsuch wrote: "Our lot as a lower court isn't to choose between the Supreme Court's holdings, but to apply them." So, we've heard a lot today, I think, about external threats to the judicial fortress, to judicial independence. Possible threats posed by the executive branch, or by the legislature.

What I'm curious to hear your thoughts about are-well, is an idea I'd like to call intrajudicial independence. I think about this from the perspective of an antitrust attorney and professor. In antitrust, particularly- and maybe this is unusual-you often see intermediate, appellate judges kind of ignoring what the Supreme Court has said on a given topic. So my question is this: Do we, as attorneys, as scholars, as judges, do we truly value precedent and do we truly obey it and follow it, or do we pay it lip service? Or is it somewhere in the middle? Now, that's a descriptive question. Normatively, should we place more value on precedent, or less value?

PROF. ALENA ALLEN2 (CO-MODERATOR): Any takers?

HON. MICHAEL B. MUKASEY3: In part it depends on the nature of the issue. If it's something that involves, say, the interpretation of a statute, and you think the Court got it wrong the last time, the legislature can always correct that. But if there are decisions that can't be corrected, and it turns out you have a good reason for believing that somebody got it wrong, then there may be a better reason to break with precedent than there might be otherwise.

That's not to say that if some graduate student came running in with a newly discovered note from James Madison that said he really never intended for judges to review acts of the legislature, that we would scrap Marbury v. Madison. You don't go that far. But the question is whether you-nonetheless whether if there is a good and sufficient reason for breaking from precedent that can't be remedied in any other way-whether you should consider doing it judicially.

PROF. ALLEN: Any other takers?

HON. ZARELA VILLANUEVA4: This is a decision of the system. In the Costa Rican system, jurisprudence-that's to say case law-is not binding. Clearly, it is typically followed, because jurisprudence is based on right, on the foundation in law. And what must prevail is the foundation in law. And for that reason, the jurisprudence will be followed in other courts, because the decision was based on the law. However, it is also quite possible that in the decision of a court there will be minority opinions which, in the course of time, may well become majority opinions.

HON. R. DAVID PROCTOR5: Let me weigh in. We expect people outside the judiciary to follow the rule of law. That's one of our hallmarks: we are a nation of laws. I think it's tremendously critical that the judiciary recognize that we're a nation of laws and we should be a judiciary that's controlled by the rule of law and, therefore, precedent is not a suggestion or guideline. It's the rule. And, of course, you know the difference if you've seen Ghostbusters. Sigourney Weaver's coming on to Bill Murray and he tells her, "As a general rule, I don't get involved with women who are possessed by an evil spirit." She grabs him, throws him on the bed and he says, "Well, come to think of it, it's more of a guideline than a rule."

[Laughter]

JUDGE PROCTOR: So, I'm afraid that sometimes judges are humans. We treat the rule of law as a guideline sometimes, and steer away from it. We wear black robes for a reason and that is so that we block out our personal views and biases. When's the last time someone at a nomination hearing before the United States Senate Judiciary Committee said, "I will follow the law so long as it comports with my personal views and what I think the law ought to be"? …

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