The war on courts and other wars

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.

The defeat in the recent election of a number of initiatives reflecting a spurious view of judicial accountability is another cause for celebration. We take from that experience the clear message that, if the issues are properly defined and explained, the American people understand the threat that such measures pose to fair and independent courts and to the rule of law. We do not underestimate, however, the challenge of overcoming a culture of sound-bites, particularly when cynically manipulated by special interests. Further, we understand that the challenge of public education is greater when distrust of the judiciary (and of lawyers in general) is promoted by the government itself, and when the sound-bites are part of the rhetoric of the war on terrorism.

We are not so na•ve as to believe either that judging is a mechanical function or that, particularly in highly salient cases where the law is indeterminate, a judge's background and experience play no role in his or her decision. Moreover, we embrace the duty of courts faithfully to interpret legislation so as to advance its purposes unless the Constitution, fairly construed, prevents its implementation. As to both, we understand that courts which consistently flouted the people's will would lose the public's support and ultimately their independence.

Yet, where in today's landscape is there evidence of courts consistently flouting the people's will? Any such charge concerning the lower federal courts is, as almost six years of conservative judicial appointments and the opportunities for appellate review of erroneous decisions would suggest, quite absurd. Moreover, recent research shows that most of the Supreme Court's work is not highly salient to the public, while other research, examining federal statutes declared unconstitutional, undermines the countermajoritarian story by distinguishing between congressional majorities at the time the statutes were enacted and at the time they were invalidated. In state systems there is no reason to believe that the courts' work in general rises more often on the public's radar screen. In any event, where judges are elected or must stand for retention, the problem of "accountability" is more likely to be one of too much-or of the wrong kind-not too little.

The current campaigns for judicial accountability and efforts to strip courts of jurisdiction that we deplore, even if they are differently motivated, reflect the same bankrupt view of the role of courts in our democratic society. Over the long course of our history, Americans' trust in their courts has been rewarded. Some of the most notable occasions when the courts have let us down have occurred during a time of war. We must not allow those who disdain the past and fear the future to create a self-fulfilling prophecy. Nor should we forget that the rights and liberties we yield to the war on terrorism are not likely to be restored in our lifetimes.