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Reseña:A recurrent theme in the excellent symposium sponsored by the Boston University School of Law on contemporary judging was the importance of, and the need to preserve, “judicial independence.” Yet, to a remarkable degree, the concept of such “independence” was presented as an unanalyzed given. Most speakers agreed that it is a good thing in the abstract, but there was no real discussion of what exactly the “it” is. There was much concern over attempts to limit judicial independence, i.e., fear of too little independence; there was little discussion, however, about the possibility of there being too much judicial independence. As one reviewer of a valuable collection of essays, Judicial Independence at the Crossroads, stated, “judicial independence is common as a public policy debate touching on what the role and power of courts should be in societies around the world.” Yet, “[e]ven with this degree of interest and attention to judicial independence . . . we have little understanding of, oragreement about, the meaning of the concept. . . . [I]t is very difficult to separate the meaning of judicial independence from the politics that surround it.” There is at least some correlation between one’s level of political support for what courts in fact do and the degree to which one embraces a robust notion of judicial independence. Indeed, given the ineluctable linkage of the term “judicial independence” with normative political positions, Professor Lewis Kornhauser suggested that we would be better off abandoning the concept as a useful analytical tool, though, of course, one might remain extremely interested in its role in ongoing political rhetoric.This is reminiscent of debate surrounding free speech, where it has been demonstrated that no sensible person would in fact support an entirely unconstrained regime of “free speech.” Fred Schauer has made a similar point with regard to quick invocation of “censorship” – at least as a negative term – in debates about speech, precisely because it turns out that everyone supports limitations on free speech under some circumstances, even if we tend to disagree on what those circumstances are. As is true of so many terms in political discourse, “judicial independence,” like “free speech,” “equality,” “liberty,” or “freedom,” is what political theorists call an “essentially contested concept.” Not only do such concepts present significant analytical complexities, which is true, of course, of many, if not most, concepts, but they also serve as positive markers in ordinary political discourse. There are probably few people resolutely willing to describe themselves as opposed to free speech, liberty, freedom, equality, or judicial independence. It is far easier to attempt to present sometimes tendentious definitions of these terms that conveniently exclude from the concept itself what one dislikes, as with the classic distinction between “liberty” (good) and “license” (bad). To take one further example, the United States, at least since the Civil War and themeaning assigned it in Lincoln’s Gettysburg Address – i.e., the triumph of government of and by the people, and not just for the people – prides itself on being a “democracy.” Such pride requires an almost willful ignorance of the extent to which the Constitution established a system that can easily be described as undemocratic. It is obvious that a great deal of ideological baggage is inevitably invested in arguments about how to resolve such disputes.What follows is certainly not meant as a full analysis, but rather a brief contribution to a long overdue conversation as to exactly what constitutes “judicial independence” and why it is necessarily a good thing. My argument is short, simple, and perhaps simplistic: there are conceptions of judicial independence in clear tension with other important values, the most important one being accountability to the general public. Almost no one, I suggest, could possibly wish to maximize judicial independence any more than most sensible people would wish to maximize other positives, such as equality and liberty. With regard to all major values, as Isaiah Berlin argued, we live in a pluralized universe where one is inevitably balancing values rather than taking any given value to some logical limit. Our two principal options are to resolutely admit that we are constantly balancing judicial independence against other equally attractive goods, or to present definitions of “judicial independence” that, as with any magician’s handiwork, smuggle the rabbit into the hat and deflect our attention from what is being elided in a given conception of the term.agreement about, the meaning of the concept. . . . [I]t is very difficult to separate the meaning of judicial independence from the politics that surround it.”3 There is at least some correlation between one’s level of political support for what courts in fact do and the degree to which one embraces a robust notion of judicial independence. Indeed, given the ineluctable linkage of the term “judicial independence” with normative political positions, Professor Lewis Kornhauser suggested that we would be better off abandoning the concept as a useful analytical tool,4 though, of course, one might remain extremely interested in its role in ongoing political rhetoric.This is reminiscent of debate surrounding free speech, where it has been demonstrated that no sensible person would in fact support an entirely unconstrained regime of “free speech.”5 Fred Schauer has made a similar point with regard to quick invocation of “censorship” – at least as a negative term – in debates about speech, precisely because it turns out that everyone supports limitations on free speech under some circumstances, even if we tend to disagree on what those circumstances are.6 As is true of so many terms in political discourse, “judicial independence,” like “free speech,”7 “equality,”8 “liberty,”9 or “freedom,”10 is what political theorists call an “essentially contested concept.”11 Not only do such concepts present significant analytical complexities, which is true, of course, of many, if not most, concepts, but they also serve as positive markers in ordinary political discourse. There are probably few people resolutely willing to describe themselves as opposed to free speech, liberty, freedom, equality, or judicial independence. It is far easier to attempt to present sometimes tendentious definitions of these terms that conveniently exclude from the concept itself what one dislikes, as with the classic distinction between “liberty” (good) and “license” (bad). To take one further example, the United States, at least since the Civil War and the |
