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?

(Continued from Page 1)

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?

Advertisement

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.

TODAY IN SLATE

Politics

The Democrats’ War at Home

How can the president’s party defend itself from the president’s foreign policy blunders?

The Religious Right Is Not Happy With Republicans  

The XX Factor
Oct. 1 2014 4:58 PM The Religious Right Is Not Happy With Republicans  

How Did the Royals Win Despite Bunting So Many Times? Bunting Is a Terrible Strategy.

Catacombs Where You Can Stroll Down Hallways Lined With Corpses

Homeland Is Good Again! For Now.

Crime

Operation Backbone

How White Boy Rick, a legendary Detroit cocaine dealer, helped the FBI uncover brazen police corruption.

Music

How Even an Old Hipster Can Age Gracefully

On their new albums, Leonard Cohen, Robert Plant, and Loudon Wainwright III show three ways.

The One Fact About Ebola That Should Calm You: It Spreads Slowly

Piper Kerman on Why She Dressed Like a Hitchcock Heroine for Her Prison Sentencing

Trending News Channel
Oct. 1 2014 1:25 PM Japanese Cheerleader Robots Balance and Roll Around on Balls
  News & Politics
Foreigners
Oct. 1 2014 6:41 PM The World’s Politest Protesters The Occupy Central demonstrators are courteous. That’s actually what makes them so dangerous.
  Business
Moneybox
Oct. 1 2014 2:16 PM Wall Street Tackles Chat Services, Shies Away From Diversity Issues 
  Life
Outward
Oct. 1 2014 6:02 PM Facebook Relaxes Its “Real Name” Policy; Drag Queens Celebrate
  Double X
The XX Factor
Oct. 1 2014 5:11 PM Celebrity Feminist Identification Has Reached Peak Meaninglessness
  Slate Plus
Behind the Scenes
Oct. 1 2014 3:24 PM Revelry (and Business) at Mohonk Photos and highlights from Slate’s annual retreat.
  Arts
Brow Beat
Oct. 1 2014 6:39 PM Spoiler Special: Transparent
  Technology
Future Tense
Oct. 1 2014 4:46 PM Ebola Is No Measles. That’s a Good Thing. Comparing this virus to scourges of the past gives us hope that we can slow it down.
  Health & Science
Science
Oct. 1 2014 4:03 PM Does the Earth Really Have a “Hum”? Yes, but probably not the one you’re thinking.
  Sports
Sports Nut
Oct. 1 2014 5:19 PM Bunt-a-Palooza! How bad was the Kansas City Royals’ bunt-all-the-time strategy in the American League wild-card game?