Why Our Courts Aren’t Broken

Monday, July 30, 2001

Memories of hanging chads, dimpled chads, and so forth are fading, which makes this a good time to reflect on the recent presidential election, specifically, on the role played by the U.S. Supreme Court. "The Court Is Broken" screamed some headlines. Even more moderate commentators debated whether the prestige and credibility of the Court, or, even worse, of the judicial system in general, had been gravely damaged. Indeed, how could anyone react calmly when the two courts charged with sorting out the electoral mess, the Florida Supreme Court and the U.S. Supreme Court, came to such contrary conclusions and, what’s more, divided in ways that seemed to indicate blatant attempts to favor the political parties to which the judges were most closely affiliated? How could anyone conclude but that the courts truly are "broken"?

Why do we not insist that courts decide only as "the law" dictates? Because of a fundamental feature of the law—it seldom clearly dictates anything.

We know, of course, what we want from our courts. Courts are supposed to be independent, above the political fray, making decisions according to "the law" and ignoring ideological or partisan considerations. "An independent and honorable judiciary is indispensable to justice in our society," proclaims the American Bar Association in Canon 1 of its Code of Judicial Conduct. For that reason, we do our best to shelter courts from the rough and tumble of partisan politics and from direct interference by governmental officials. Article III of the United States Constitution provides that federal judges serve for life, cannot have their salaries reduced while they are in office, must receive the same salary increases as those received by other judges at the same level, and can only be removed from the bench for gross incompetence or criminal behavior. Florida’s supreme court justices don’t enjoy quite that level of protection but are insulated in other ways. The appointing Florida governor is required to choose from a shortlist of candidates prepared by a nonpartisan nominating commission, so as to reduce the "politics" involved in candidate choice. The justices receive subsequent terms not through reappointment, which would put them at the mercy of the governor, but by winning uncontested "retention" elections, where the ballot simply reads "Should Judge X be retained in office." Studies show that these uncontested elections are rarely lost—voters tend not to vote against a candidate in the absence of an alternative. Retention elections also keep justices off the campaign trail (Canon 7 of the American Bar Association’s Code of Judicial Conduct, which has been incorporated into state law in 47 states, forbids judges from campaigning unless opposed), which further reduces the pressure that political parties, potential donors, and so forth can bring to bear on sitting judges.

Studies have indicated that political party is a fairly good predictor of judicial decisions in a number of areas. But this isn’t simply because judges vote the party line. Political affiliation generally reflects one’s broader view of the world as well.

In short, both the U.S. Supreme Court and the Florida Supreme Court enjoy substantial independence. Yet each stands accused of having let ideology influence its decision in the Florida ballot case. Despite the furor, claims of this kind are not new; at regular intervals, judges have been accused of interpreting constitutions so as to push particular political agendas, ignoring displeasing statutory and procedural provisions, disregarding disliked precedent, and so forth. For example, when the doctrine of judicial review was first asserted in North Carolina in 1787, the justices were denounced as usurpers of a power that rightly belonged to the elected representatives of the people. In this century, the U.S. Supreme Court was initially very hostile to many of Franklin Roosevelt’s New Deal proposals, generating grumbling on the left that the court was thwarting the public will. The grumbling came mostly from the right during Earl Warren’s term as chief justice, but the complaint was again that the Court was overstepping legitimate bounds to promote an ideological agenda—indeed, the Warren Court is considered by many the archetype of an "activist" court. More recently, the Supreme Court’s critics have moved to the left as the Court has moved to the right, but the gist of the criticism is the same—the Court stands accused of interpreting law in an ideological fashion rather than in accord with a more accepted standard.

Why do we allow courts to behave in this way? Why do we not insist that courts decide only as "the law" dictates? Because of a fundamental feature of the law—it seldom clearly dictates anything. Generally speaking, a disputant litigates only if he or she believes there is a reasonable chance of winning. But, of course, opposing disputants cannot both win the case, so the fact that two sides to a dispute choose to litigate indicates disagreement about the expected outcome—the law or the facts must not be clear. Given how broadly drawn most laws are, this is not surprising. To illustrate, imagine a lawsuit. Let’s say that all parties are in accord on the particulars, so that the plaintiff expects to be awarded $20,000 and the defendant expects to be penalized $20,000. In addition, the trial will cost each party $10,000. Why would the two go to court? They could settle instead and save money on lawyers’ fees. Although bargaining problems may explain the occasional litigated case, for the most part, reasonable people litigate because they rationally disagree about the application of broadly drawn laws to potentially disputable facts.

The uncertainty surrounding a particular law, or its application to the particular case, means that reviewing courts generally have substantial discretion when they render a decision. That discretion is certainly not absolute; the way a law is written and the manner in which precedent is interpreted tend to reduce the number of acceptable outcomes in almost every case. Nonetheless, a judge is usually presented with at least a few legitimate decision alternatives. By design, a truly independent court answers to no one. In coming to a conclusion, therefore, independent judges need look only within themselves. They will probably draw on the same things that any of us would: a sense of justice, rightness, appropriateness, beliefs as to the proper role for government, beliefs as to the proper role of a court. Political scientist James Gibson writes that "judges’ decisions are a function of what they prefer to do, tempered by what they think they ought to do, but constrained by what they perceive it feasible to do."

Studies have indicated that political party is a fairly good predictor of judicial decisions in a number of areas. However, this is not simply because judges vote the party line. Political affiliation generally reflects one’s broader view of the world, at least to a degree. When the facts and the law are ambiguous, this broader view is likely to affect one’s determination of the appropriate outcome in a given case. Judges’ beliefs matter because the judges are independent—they do not have to look to political masters elsewhere for instructions. When we make courts independent, we are allowing, encouraging even, a judge’s beliefs and values to enter the judicial decision calculus, not to determine the decision but to influence it. There is no way around this. The law gives judges discretion, and independence allows judges to use that discretion as they will.

The price of judicial independence is thus judicial discretion. We as a society face a fundamental and unavoidable choice. On the one hand, how to control and channel the coercive power of the state is a central dilemma for any political system. Courts that are not easily influenced by either the threats or the promises of other political actors are able to ensure that the acts of legislators and other public bodies conform to the terms outlined in governing statutes, are applied in the established legal manner, conform with the accepted precedent, and are consistent with the underlying constitution. On the other hand, independence allows judges to influence policy themselves. And that can generate tension—at various periods in American history, independent courts have been criticized as "unelected aristocracies." Even if one were to assume, as certain commentators have, that judges care about nothing but "justice" or "the public interest," how are the judges to tease these out of manifestly complicated cases? The occasional poorly informed or self-interested judicial decision is the price we pay for establishing courts that can check the potential opportunism of governing officials.

In instances where legal standards are not clear, the law gives judges discretion, and independence allows judges to use that discretion as they will.

The alternative, of course, would be a "dependent" court (i.e., a court that decides cases as its political masters desire). And in some instances, that may be preferable. For example, although it is clear that we do not want a traffic court judge to take bribes, there is little reason to care whether or not she is independent of the legislature or of the executive—the issues are clear-cut, and the judge’s duties leave her with little discretion. Indeed, regular reviews of performance by political overseers with the possibility of removal from office might inspire traffic court judges to work harder and more efficiently (of course, undesirable side effects are possible, too). However, this is certainly not true of the American appellate judges, who are required to review the very acts of Congress and state legislatures. We want judges independent of those folks—how else can they stand as guardian against government abuses? And so we establish institutions that provide our appellate courts with protection from incumbent political officials and political parties. We make them independent.

When we make courts independent, we are allowing, encouraging even, a judge’s beliefs and values to enter the judicial decision calculus, not to determine the decision but to influence it. There is no way around this.

Summing up, the U.S. Supreme Court is not broken. Returning to the Florida debacle, what made each court’s difficulty so severe was that the governing legislation could be interpreted in several different ways. One had only to watch the competing legal scholars debate night after night on television to understand this. Whatever one may think about the U.S. Supreme Court’s ultimate decision (or of that of the Florida Supreme Court, for that matter), the Court decided the case in the independent fashion intended. There is thus a certain irony to the fact that it was heartily impugned as partisan for the simple reason that its justices enjoy the institutional protections that allowed it to make an "independent" decision.