Does America need protection from its out-of-control judges?

The law, lawyers, and the court.
Feb. 28 2009 7:47 AM

Lest Ye Be Judged

Does America need protection from its out-of-control judges?

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If justices ever answered such questions, one might well ask Scalia the follow-up: How can the people have confidence in the integrity of justices who answer to nobody?

But efforts to control the judiciary often run afoul of the ideal of judicial independence. Whenever the public attempts to tell judges or justices how to behave themselves, they run headlong into the argument that judges warrant special deference because what they do transcends politics and public opinion. Why should the justices care what we think of their stock portfolios? Isn't their job to be above caring what we think about anything?

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That's why an attempt last week by a group of prominent academics and practitioners to manhandle the justices of the Supreme Court into line will likely prove futile. A group of 33 prominent legal thinkers sent a letter to Attorney General Eric Holder and ranking members of the Senate judiciary committee, proposing Supreme Court reforms that would bar justices from making their own calls about their retirement. (They would be demoted to "senior status" after 18-year terms, and the chief justice would serve as chief for only seven years.) Justices would lose the power to decide for themselves if they are too sick or ill to serve, as well as the authority to decide which cases the court would hear each term. Since the Constitution provides that the justices shall hold office "during good behavior," these attempts to cut short judicial careers and pump up judicial caseloads will likely go ignored, although it speaks volumes that America's great legal minds think the justices are old, infirm, and underemployed.

So while Americans of every stripe worry and bicker and advocate for greater control over the judiciary, whether it's in the family courts, state Supreme Courts, or at the highest court in the land, what the judges hear for the most part is the sound of crickets chirping. And perhaps this is right and proper. In the truly appalling cases, like Kent's sexual harassment charges, judges should be disciplined. But the larger problem is that jumbled in with America's legitimate grievances about their judges, there are also many vague and subjective gripes from litigants who just didn't get what they wanted. No litigant ever walks away happy from his case. That alone doesn't mean every judge is biased, self-interested, or on the take.

Judges are not gods. But before we criticize too much, we must be honest enough to admit that what looks like bias and corruption to us might just be a fallible human being doing her job at one end and a fallible litigant feeling ripped off at the other. If we create too many systems for micromanaging the judiciary, we are really saying that we trust their judgment only when they agree with us. We need to separate the real problems of policing judicial misconduct from the generalized grousing that if judges don't agree with us on everything it must be because they are old, elitist, corrupt, or out-of-touch. And in the end, to paraphrase Scalia, we must either trust in our judges to judge, or do away with this institution altogether.

A version of this article appears in this week's issue of Newsweek.