INDEPENDENT JUDGES, DEPENDENT JUDICIARY: INSTITUTIONALIZING JUDICIAL RESTRAINT JoHN A. FEREJOHN* & LARRY D. KRAMER** Many commentators believe that judicial independence and democratic accounta- bility stand in irreconcilable tension with each other. Professors Ferejohn and Kramer suggest that these competing ideals are not themselves goals, but rather are means to a more important end: a well-functioning system of adjudication. Either or both may be sacrificed in the pursuit of this overarching objective. The United States Constitution seeks to achieve this objective by giving individualjudges enor- mous independence while placing them within an institution that is highly suscepti- ble to political control. The resulting vulnerability creates a dynamic that makes federal courts, and especially the Supreme Court, into effective self-regulators. The Authors argue that, seen in this light, the system of institutional self-restraint en- compasses a broader range of judicial doctrines than has been understood previ- ously. The Article concludes that reconciling the judiciary's twin goals of democratic legitimacy and legal legitimacy requires a more balanced view, for maintainingthe judicial branch's independence lies as much or more in the judge's own hands as in external politicalpressures. Platitudes become platitudes only because they are so obviously true. Take the following: "[T]he independent federal judiciary has been a powerful tool in guarding the Constitution and the rights of individuals."' Now who would disagree with that? How about: A constitutional democracy must "include provisions making the judici- ary accountable to both the political branches and the electorate."'2 Any objections? Statements like these, as vapid as they are axiomatic, are the sort of thing that men and women on both sides of a discussion * Carolyn S.G. Munro Professor of Political Science and Senior Fellow of the Hoover Institution, Stanford University; Visiting Professor of Law and Politics, New York Univer- sity School of Law. B.A., 1966, California State University, Northridge; Ph.D., 1972, Stan- ford University. ** Samuel Tilden Professor of Law, New York University School of Law. B.A., 1980, Brown University; J.D., 1984, University of Chicago School of Law. This Article was origi- nally prepared for and presented at the inaugural conference of the Center for Interdisci- plinary Studies at Washington University School of Law, St. Louis, Missouri, March 30, 2001. We would like to thank Barry Friedman for comments and Jay Shuman for research assistance. 1 Deanell Reece Tacha, Independence of the Judiciary for the Third Century, 46 Mer- cer L. Rev. 645, 645 (1995). 2 Am. Bar Ass'n, An Independent Judiciary: Report of the ABA Commission on Sep- aration of Powers and Judicial Independence pt. 2, at 5 (1997), http://www.abanet.org/gov affairs/judiciary/report.html [hereinafter ABA Report]. 962 Imaged with the Permission of N.Y.U. Law Review October 2002] INDEPENDENT JUDGES, DEPENDENT JUDICIARY 963 of judicial independence will agree upon and serve up with perfect sincerity and conviction. Sadly, bromides like these-or maybe these together with a vague notion that independence is supposed to make it possible for judges to decide cases based on "the law" (whatever that means)- pretty much exhaust the areas of agreement. Consensus on broad val- ues combined with discord over their application in particular cases is hardly uncommon, in law or anything else. But the range of disagree- ment when it comes to judicial independence seems unusually wide. We expect controversy over how to draw the line between proper and improper judicial behavior in particular cases, but there is as much uncertainty in locating the line between proper and improper external influences. Indeed, we do not have anything approaching consensus even with respect to the normative conditions necessary to have a properly independent bench. There is disagreement about whether or how to criticize judges and their decisions, and about whether or how to discipline judges. There is disagreement about how to explain or justify our institutional arrangements, and about which of these ar- rangements are constitutional and which are conventional. And, of course, there is pervasive disagreement about whether our judges ex- hibit too much or too little independence. Sorting through the debates on and surrounding judicial indepen- dence is thus a formidable task, but the necessary first steps seem clear enough. We need a workable definition of what we want to ac- complish by making the judiciary independent and an accurate description of the institutional arrangements through which these ends are supposedly accomplished. With a better understanding of how our system of judicial independence actually works, we can begin to explore what, if anything, makes these arrangements stable and to address ticklish normative questions about whether judges have too much or too little independence. In Part I, we consider what independence is meant to accomplish, seeking to clarify some areas of confusion by recharacterizing and so refocusing the inquiry. Most discussions of judicial independence bog down in what commentators view as an irreconcilable tension between independence and democratic accountability. We are told we cannot have it both ways. We can have a bench that is independent or a bench that is accountable, but we must accept a trade-off that sacri- fices one or the other of these goals to some yet to be defined extent. Maybe so, but we will argue that independence and accountability are not the ends about which we need to be concerned. They are means toward a more fundamental goal: the construction of a well-function- Imaged with the Permission of N.Y.U. Law Review NEW YORK UNIVERSITY LAW REVIEW [Vol. 77:962 ing judiciary. That either or both must be sacrificed to a degree sim- ply is not a problem if done in the service of this, our true objective. Because the process of adjudication has this dual concern for in- dependence and accountability, it necessitates a complex institutional design. We mix and match various structural arrangements-some protecting the independence of judges, others making them accounta- ble-in an effort to create a properly balanced judicial system, by which we mean one capable not only of deciding particular disputes in light of their facts, but also of interpreting and even creating law, in- cluding constitutional law. Given the numerous ways in which courts can be regulated and influenced, countless possibilities exist in this regard (as evidenced by the variety of systems used both within the United States and in other nations). What matters is to understand how a particular judicial system balances concerns for independence with concerns for accountability. Only then can one begin to think about whether the system does so in a way that creates a well-func- tioning judiciary. As we explain in Part II, the balance between independence and accountability in the federal system is maintained through a system that protects individual judges from direct outside interference while making the institution in which they work vulnerable to control by the political branches of government. This institutional dependence, in turn, has made the judiciary into a self-regulator, the creator of self- imposed institutional and doctrinal constraints that, as we describe in Part III, keep judges from needlessly stepping on sensitive political toes. The resulting equilibrium is one in which the political branches seldom need to exercise their power or even to threaten doing so. Without, at this point, taking a position on the normative ques- tion of whether our judiciary exercises too much or too little restraint, we believe-and will try to demonstrate below-that the mechanisms operating to cabin federal judges include a variety of judicially created doctrines not usually thought of in connection with judicial indepen- dence. The full panoply of institutionalized forms of judicial restraint is, in fact, broader than most judges and commentators realize. De- spite bold rhetoric about an independent or uncontrollable judiciary actively and aggressively curtailing political decisionmaking, our fed- eral bench is normally a prudent institution, hemmed in on every side by self-created fetters-normally, but not always, as the Supreme Court's recent actions demonstrate. Yet when the Court overreaches, the political branches have the means and the responsibility to remind the Court of its due place in the political system. Such, at least, has been the dynamic that has historically defined constitutional adjudica- tion in the United States. Imaged with the Permission of N.Y.U. Law Review October 2002] INDEPENDENT JUDGES, DEPENDENTJUDICIARY 965 I INDEPENDENCE AND AccouNTABILITY: PROTECrING THE ADJUDICATORY PROCESS In characteristically lighthearted fashion, Judge Alex Kozinski re- cently pondered what judicial independence means. Suppose, he mused, "I decided to show my independence by getting on the bench dressed like Ronald McDonald" or "took it on myself to write all my opinions in law French. That would be independent, right?"13 The very outlandishness of his illustrations served to underscore the unex- pected difficulty of the inquiry, as Judge Kozinski knew they would. What do we mean when we talk about the need for judicial indepen- dence? What are we looking for judges to do, what are we trying to prevent or protect, and why? Commentators have offered a bewildering assortment of answers to such questions, urging the need to protect everything from "deci- sional independence" to what they call "branch independence," "pro- cedural independence," "administrative independence," and even "personal independence."14 Close consideration of the arguments does little to dispel confusion. Everyone agrees that we need "deci- sional independence," meaning judges' ability to adjudicate facts and interpret law in particular cases "free from any outside pressure: per- sonal, economic, or political, including any fear of reprisal."15 Yet eve- ryone also agrees that certain forms of popular or legislative pressure are not only permissible, but indispensable.