Monday, December 04, 2006

Is "Informal" Accountability Enough?

Over at Ratio Juris, one of our sister blogs in the Jurisdynamics Kingdom, R.J. Lipkin inquires as to the apparent absence of judicial accountability. At the risk of sparking a civil war within the empire, I dissent rather vigorously. Constraint doesn't come from rules, and only marginally from institutions.

Professor Lipkin writes:
Are federal judges, especially Supreme Court Justices, accountable? If so, to whom? Accountability involves giving an accounting--an explanation, justification, or rationalization--of your conduct to someone who is entitled to the accounting. A decision-maker is accountable to her supervisor because she is required, in the appropriate circumstances, to provide the supervisor with such an account of her conduct. Accountability typically grants the supervisor the prerogative of disciplining the decision-maker for her errant decision. You have the capacity to discipline a subordinate when you can reverse the subordinate's decision, demote or fire the subordinate, or make sure the decision is given limited effect.

The question of whether judges are accountable can then be understood as inquiring whether judges owe an explanation, justification, or rationalization of their decisions to anyone. Alternatively stated, are there any limits or constraints on judicial decision-making? There are, of course, informal limits or constraints on judges. First, federal judges typically must convince other judges to join their opinions in order for those opinions to control. Second, federal judges are often sensitive to public opinion and so are informally constrained by it. Third, federal judges often care about the legitimacy of the courts in the constitutional scheme and for that reason try not to become a loose canon, thereby detracting from the Court's prestige.

Do these limits mean that judges are accountable? Not a chance! Because these concerns, even if highly regarded by judges, are not requirements imposed on judges, but instead are optional, they "constrain" judges only if judges have these concerns and not always even then. Nothing requires judges to be concerned about these matters; so if they are, it's due to a choice on their part, not a constraint on choice.

First of all, I'm confused why the requirement than an opinion garner a majority to be controlling and count as precedent is marked as an "informal" limit. It seems to me to be a very formalized and very effective constraint to prevent "judges gone wild." With nine judges on the Supreme Court reflecting a broad range of opinions and ideologies, the simple act of counting to five requires some degree of consensus and arguments that extend beyond the purely provincial or idiosyncratic. A judge is existentially free to disregard that constraint, but who cares? So he'll persistently be on the bottom of 8-1 decisions. That doesn't threaten the workings of our constitutional order. Any constraint that isn't literally physical can theoretically be ignored if one doesn't care about the effects--Lipkin is wrong to impute that this problem exists only in the status quo, rather than being an inherent function of being independent humans with the capacity for independent action. Thus, every non-external "constraint" is, in a sense, voluntarily assumed--the choices only appear to be more or less determined. But somehow, they work anyway, because the power of these social-imposed constraints is far more vigorous than Lipkin gives them credit for.

The important thing is that a judge who constantly writes opinions with no regard for the views of fellow justices as to "the law" will find his or her opinions marginalized, worthless, and buried deep in the bowels of West Reporter, never to surface again. Even if every judge decided tomorrow that they were going to vote purely based on partisan preference, they'd still have to act strategically and negotiate with other judges if they wanted their words to translate into real action. So, each judge is accountable to other judges because those other judges most certainly can "make sure [her] decision is given limited effect." And in any event, if every single judge decided to ignore every single factor aside from their own partisan desires, I think it would signal a far bigger breakdown of our constitutional order than could be resolved simply by rejiggering the system.

Next, I'm curious why even truly "informal" constraints are considered to be insufficient checks on the judiciary. Professor Lipkin would respond: "Because judges could ignore them!" But I'd respond, "But they don't! And if they do, other relevant actors will stop listening, so it won't matter!"

I'm sure Professor Lipkin is aware of the arguments against increased formal "accountability" by the judiciary to the democratic branches (in the form of decreased judicial independence and protection for minority rights). It may well be that we have to bite those harms, if it could be shown that informal constraints weren't working. But that simply isn't the case. For all the fretting, judges do seem concerned with issues of institutional propriety, and do seem concerned that their opinions be seen as "legal" ones, and do seem concerned that they display appropriate humility and respect for their role in the democratic order. And again, if one refuses to play ball, he'll be sanctioned by the others. So long as that is true, I'm not sure why we need to fix what ain't broke.

More concretely, these "informal" constraints can rapidly morph into formal ones if there is a popular pushback. There are few, if any, cases of the courts stepping radically outside the beliefs of a national majority (as several writers have argued, Brown v. Board imposed a national consensus upon a recalcitrant regional minority). And when they do over-reach, courts find that their decisions typically carry little weight. A determined bureaucratic agency can stymie or delay a court decision nearly indefinitely with a bit of creativity and spine. As Gerald Rosenberg has shown, the Court's ruling in Brown did virtually nothing to effect school desegregation rates, and movement did not occur on that front until the federal legislature and executive passed and began enforcing civil rights laws. So in this respect too, informal constraints truly do restrain judges because judges who utterly ignore certain external factors will find that their "decision is given limited effect."

In the end, constraint has little to do with formal avenues of review or hierarchy, and everything to do with--to be blunt--what you can get away with. Judges are constrained insofar as there are certain things they might do that would not be accepted by the rest of the (to borrow from Stanley Fish) "interpretative community." A judge can't submit his grocery list as an opinion, not because of some formal barrier that stays his hand, but because West probably would not publish it, or an appellate court would overturn it, or because he'd be impeached, or because he feels bound via some socially constructed value schemas to not substitute grocery lists for opinions. Judges are thus "accountable" to anyone who could insure that their "decision is given limited effect" simply by ignoring, fighting, counteracting, or actively sabotaging it--a significant portion of the American population. That's as much accountability as we've ever needed.

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