Independence day: thinking seriously about judicial independence, and the state of our courts.

UNIVERSITY OF CHICAGO law professor Cass Sunstein thinks that we are entering a new and "worrisome" phase in the political struggles over the courts: The Right is mounting "a large-scale challenge to judicial independence." The editors of the Washington Post think that "the past few weeks have seen an aggressiveness in conservative attacks on the judiciary that cumulatively takes one's breath away" and warn that some Republicans are crossing "red lines beyond which legislators cannot go without threatening judicial independence." Al Gore says, "Through their words and threats, [some] Republicans are creating an atmosphere in which judges might well hesitate to exercise their independence for fear of congressional retribution, or worse."

Concern about threats to judicial independence is not limited to liberal academics, journalists, and ex-politicians. Ted Olson, President Bush's first solicitor general, wrote an op-ed for the Wall Street Journal titled "Lay Off Our Judges." Reminding us that our "independent judiciary is the most respected branch of our government, and the envy of our world," he asserted that it would be wrong for Congress to impeach judges or remove jurisdiction from federal courts. Chief Justice William Rehnquist's annual report on the federal judiciary also cautioned against any attempt to check the courts other than "the gradual process of changing the federal Judiciary through the appointment process." He concluded the relevant section of the report thus: "Let us hope that the Supreme Court and all of our courts will continue to command sufficient public respect to enable them to survive basic attacks on the judicial independence that has made our judicial system a model for much of the world."

Sunstein is right about one thing: The politics of the judiciary is indeed entering a new phase. For years, conservative critics of judicial usurpation have attempted to combat abuses by trying both to get better judges appointed and to amend the Constitution to undo particularly objectionable decisions. Republicans continue to pursue both strategies. They are trying to abolish the filibuster of judicial nominees in order to get better judges on the bench, and some want a Federal Marriage Amendment to prevent usurping judges from redefining our most important social institution.

But having largely failed to arrest by these methods the federal judiciary's arrogation of power, conservatives are now increasingly looking at structural reforms to the power of the courts. In 2004, the House of Representatives passed bills that would limit the jurisdiction of the federal courts over the Pledge of Allegiance and the Defense of Marriage Act. In the aftermath of the Schiavo case, Tom DeLay, the House majority leader, reiterated his interest in impeaching wayward federal judges. Others are wondering about the merits of term limits for federal judges.

But many Republicans--including the president and vice president--have sworn up and down that they, too, support judicial independence. Indeed, very few people explicitly repudiate judicial independence. The facts suggest that what we're seeing is not "a large-scale challenge to judicial independence" so much as a debate about what judicial independence, properly considered, means.

NOT A TINPOT DICTATORSHIP

Almost everyone would agree that a reasonable definition of judicial independence should include the ability of judges to make decisions they believe follow the law, without fear or favor. When we lament the absence of an "independent judiciary" in other lands, we generally mean that, in a dispute, the courts in these places will side with the politically connected or the rich. Almost everyone--everyone, we suppose, but the family members and friends of tinpot dictators--can see the value of having a judiciary that is independent of such pressure. It is also reasonable to regard judicial independence as including the norm that judges' decisions are almost always binding on the parties to a case. If the executive branch could routinely ignore judicial decisions it disliked, for example, then the executive would have taken on a judicial function, and thus, to that extent, there would be no judiciary independent of other parts of the government.

The first thing to note about this kind of judicial independence is that it should constrain judges at least as much as anyone else. If judges themselves allow their political preferences to affect their reading of (or worse, to trump) the law, then they squander what is valuable about judicial independence. Likewise if they place the institutional interests of their courts ahead of the law, effectively making themselves parties to the case. If these things have happened on a wide scale, as we and many other conservatives (and even some liberals) believe, then they have happened at a cost to judicial independence--and it makes little sense to accuse anyone who wants to do something about it of opposing judicial independence.

Teasing out the view of judicial independence implicit in the remarks of Sunstein, Rehnquist, and the others is a little tricky, but it appears to go well beyond the binding character of court rulings and the absence of pressure on judges to reach particular results. These commentators also tend to take judicial independence as requiring that the other branches a) regard the courts' say on constitutional meaning as final and b) apply no checks on the courts other than appointments and amendments. In practice, "judicial independence" becomes identical to maximal judicial power.

There is a limit to how far any of these defenders of the courts will go toward judicial supremacy. None of them says that the Constitution simply is whatever the Supreme Court says it is. To accept that claim would be to make many of the Court's decisions to overrule its own precedents unintelligible. It would also raise impolitic questions about whether the Constitution is a meaningful constraint on the Court. Instead, the judiciary's defenders say that criticism of the courts--"even sharp" criticism, Olson generously allows--can be appropriate. They just want keep the criticism from getting out of hand.

But they have a hard time identifying principled boundaries. The Washington Post says that there are "red lines." How do we know when we have crossed them? The closest the Post comes to answering that question is to say that judges have to be able "to render difficult decisions without facing personal retribution, budgetary retaliation or diminution of the jurisdiction of the courts to hear important questions." But this won't do. The Post isn't saying that there's a constitutional rule against, say, limiting the courts' jurisdiction. If it believed that, it would merely have to provide evidence for the existence of this rule to close its case. Instead, it's saying that Congress should not exercise its power to limit judges' jurisdiction because, even if Congress does have that power, its exercise would keep judges from being able to do their jobs. And that assertion is question-begging. You could just as well say that judges have to be able to render difficult decisions without facing the prospect that anyone will try to appoint differently minded judges or amend the Constitution to undo their handiwork. The Post's proffered answer doesn't distinguish between what should be allowed and what should be "Beyond the Pale" (the title of the editorial).

Chief Justice Rehnquist gives a more plausible answer: The only checks we have used against the courts, historically, are the appointment and amendment processes. Congress has not impeached judges for their decisions, and has not restricted the courts' jurisdiction over constitutional matters. This traditionalist answer, however, fails to reckon with the possibility that the courts' arrogation of power over the last few decades has been unprecedented. If that is true, as many conservatives believe (sometimes as a result of reading Rehnquist's dissenting opinions), then the force of the traditionalist argument dissipates. New challenges sometimes call for new responses.

And it is true that the Court's rulings in the last few decades have been unprecedented. Apologists for the modern courts always say that they are merely doing the job American courts have always done: enforcing the Constitution, being fiercely independent, ruffling feathers, vindicating rights, etc. Anybody who objects to their latest innovation--whether abortion-on-demand 30 years ago, same-sex marriage today, or voting rights for prisoners tomorrow--is told that his real quarrel is with Marbury v. Madison and the Founders.

Yet it is undeniable that we now have a federal judiciary that nullifies federal and state laws at a far faster pace than obtained for most of the nation's history. It may be that the government enacts more unconstitutional laws than it used to--conservatives, of all people, will be sympathetic to that view. But the laws being struck down are often very old laws that are merely running afoul of new theories. So what defenders of the judiciary should properly say is that the courts are newly energetic in doing a duty that they have previously neglected. That is not terribly plausible; and even if it were true, it would be hard to declare it "beyond the pale" for other branches of government to object to this new energy. In addition, we now have courts that view their role in demonstrably more grandiose terms than previous courts did. Nothing John Marshall said approaches the claims of judicial supremacy made by the Supreme Court in Casey, City of Boerne, or Dickerson--to cite three cases from the 1990s.

It is worth noting that nobody doubted that our courts were "independent" back when they were more deferential to state governments and to Congress. Everyone could see the difference between our form of government and the aforementioned tinpot dictatorships, which really did lack judicial independence. Nobody doubted that the courts were independent even when the other branches were not deferential to them. Abraham Lincoln famously said in his first inaugural that while court decisions must be respected in particular cases, they need not be considered binding as policy on other branches of government. His critics do not generally take him to have been attacking the independence of the courts (at least in that speech).

FINDING AN ANTIDOTE

So it is better to look at the merits of proposed structural reforms than to rule them out on principle. DeLay's suggestion of impeaching judges does not seem very promising. The very situation that recommends structural reform--a widespread tendency of the courts to go beyond their legitimate authority--militates against impeachment. Impeaching large numbers of federal judges would be, to say the least, impractical. Perhaps DeLay envisions impeaching a few especially egregious judges pour encourager les autres (although he might balk at using French). But it would be hard to generate a consensus on which judges to impeach.

It might seem that the two federal judges who ruled it unconstitutional to have schoolchildren recite "under God" in the Pledge of Allegiance would make worthy targets. But the truth is that those Ninth Circuit judges were applying the Supreme Court's chaotic precedents on church and state in a way that is not utterly implausible. The problem is with the Court's church-state jurisprudence--which attempts without the slightest constitutional warrant to micromanage local governments' interactions with the divine--and not with those two judges. To impeach them would be like court-martialing the lieutenants for the crimes of the generals. It would be unlikely to cause the deeper judicial retrenchment we should seek. And because impeachment is at least as much a campaign against individual judges as a structural reform, it really would threaten the true and valuable kind of judicial independence. Judges should not hesitate to follow higher courts' precedents (or otherwise read the law as they think correct) because they fear for their jobs. On that much, at least, Rehnquist, Olson, and the rest have it right.

Removing certain matters from the federal courts' jurisdiction, on the other hand, has much to recommend it. There are three principal arguments against such legislation as the House bill to deny federal courts jurisdiction over the Pledge. They are that Congress can't do it, that it won't work, and that it will.

When Congress first took up the Pledge bill, Rod Smolla, dean of the University of Richmond School of Law, argued in Slate that Congress couldn't do what it was trying to do: Congress cannot simply license the state governments to violate the Constitution by denying the federal courts the ability to do anything about it; the Supreme Court has to be able to enforce the Constitution; otherwise all the fine words of the Constitution would be dead letters.

But it is not true that every provision of the Constitution is to be enforced by the Supreme Court, and not even the modern legal academy takes that position. (To take the most obvious example: The appropriate balance of power between Congress and the president in foreign policy is left largely to the tug-of-war between those branches.) Some form of judicial review of statutes' constitutionality can be reasonably inferred from the Constitution. The power of Congress to regulate the federal courts' jurisdiction is, however, spelled out in the text of the Constitution (Article III, Sections 1 and 2). The text has to trump an inference, even a strong one, if the Constitution is not to be a dead letter. The simplest reading of the constitutional provisions in question is that they allow Congress to place limits on the courts' attempted enforcement of the Constitution. Judges may think the Founders were mistaken on this point, but are not authorized to correct them.

The argument that jurisdiction-stripping will not work generally involves state courts. It is said that if the Pledge bill were to pass, state courts within the Ninth Circuit, such as the state courts of California, would remain obligated to enforce the ruling against the words "under God." If someone were to challenge the constitutionality of the words in Vermont, meanwhile, it would fall to the state courts there to interpret the First Amendment and make a ruling. So, the argument runs, the bill would not protect the pledge or even solve the problem of judicial activism. Vincent Philip Munoz, writing in First Things, argues that it would be better to get the Supreme Court to overturn the Ninth Circuit ruling than to pass the bill.

All this argument establishes, however, is that the wisdom of withdrawing jurisdiction from the federal courts depends on, among other things, the importance of national uniformity-and that importance will vary from case to case. The nation can prosper even if schoolchildren in Vermont and Alabama say the Pledge differently, and federal legislators are capable of making that determination. There is also the possibility that successful action to rein in the federal courts will inspire analogous action in the states. The question Munoz raises, meanwhile, is one of priorities. He envisions a scenario in which Justices Sandra Day O'Connor and Anthony Kennedy fabricate some unconvincing distinction between the Pledge case and the Court's precedents in order to let the Pledge stand. It is a plausible story. But would this modest improvement in the Court's church-state jurisprudence--assuming that it could be called an improvement--be worth sacrificing the opportunity to address the structural problem of an out-of-control judiciary that gave rise to the case in the first place? It's not a close call in this case, although in others prudence might well require a different judgment.

Finally, there is the argument that Congress can limit the federal courts' jurisdiction but should not do so because it would threaten Americans' constitutional liberties. In the course of criticizing jurisdiction-limiting legislation, Olson writes, "As much as we deplore incidents of bad judging, we are not necessarily better off with--and may dislike even more--adjudications made by presidents or this year's majority in Congress." Olson is certainly correct to suggest that Congress might abuse its power. It could shield truly unconstitutional activity from the federal courts. Anyone who pays even modest attention to Congress, and has noted the ham-handedness with which some congressional opponents of judicial excess have recently conducted themselves, can see Olson's point.

But this is not the only kind of constitutional error that we can fall into. It is not as though the alternative were judges who always make the right decisions. Judges can declare policies unconstitutional when they are not, and can assume a power the judiciary was never meant to have. One can imagine many possible methods of enforcing the Constitution: leaving the task to courts alone, leaving it to legislatures alone, or dividing responsibility for it among them in some fashion. Under any proposed method, however, there is some chance--indeed, human nature being what it is, there is a near-guarantee--that governmental practice will depart in various ways from the Constitution. To have a constitution is necessarily to have an imperfect constitutionalism (which is better than none at all). The question is which division of institutional authority, among those allowed by the Constitution, is most likely to lead to constitutional outcomes.

A political culture that assumes that judges have a monopoly on enforcing the Constitution may well cause other political actors, and the public itself, to pay little attention to the Constitution on the theory that the courts will take care of it. The spread of that assumption can hardly be healthy for constitutionalism. Moreover, the checks we are currently applying to the courts seem to be failing to do enough to check them, which suggests that we may need to revive old ones or create new ones. Indeed, the judicial independence celebrated by the modern legal culture is undermining the old-fashioned kind. Judicial independence read as the relative absence of external constraints on judges almost inevitably leads to judicial independence from the rule of law.

People who have grown accustomed to regarding judicial independence as identical to judicial power, and judicial power as identical to the rule of law, have difficulty imagining that possibility--let alone realizing that it has actually occurred. To return the federal courts to their proper constitutional role may well require that we strip the courts of part of their jurisdiction. It will surely require that we strip away the ideological fictions that sustain their power.

Mr. Ponnuru is a senior editor of NATIONAL REVIEW. Mr. George is McCormick professor of jurisprudence and director of the James Madison Program in American Ideals and Institutions at Princeton.