Can an Ineffective Judiciary Hear Its Own Case?

Slate's blog on legal issues.
April 15 2008 12:30 PM

Can an Ineffective Judiciary Hear Its Own Case?

Last week, I discussed the lawsuit of N.Y. Courts vs. N.Y. Governor and Legislature.  Judith Kaye, the Chief Judge of the N.Y. Court of Appeals, has brought suit on behalf of the court system, arguing that the political branches have violated the principle of separation of powers and the compensation clause by failing to raise judicial salaries over the last nine years, a period during which the real value of those salaries declined by 25 percent.

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The separation of powers argument is that if salaries do not keep up with inflation, they eventually become "inadequate," in which case the judiciary cannot perform its functions, becomes ineffective, and thus cannot check and balance the political branches.

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Does the complaint prove that the N.Y. judiciary has become ineffective?  It quotes a few judges who say they are unhappy and are likely to resign because of inadequate pay.  But it does not try very hard.  If the plaintiffs are right, then they should be able to come forward with statistics that show that N.Y. judges resign before the end of their terms in increasing numbers; that N.Y. judges enjoy less respect among practitioners; that trials and appeals are taking longer; that judges are committing more errors than in the past; that judges are less likely to rule against the N.Y. government; that they are more likely to be disciplined for improper behavior; and so forth.

Why doesn't the judiciary come forward with evidence that it is ineffective?  Let's put aside the obvious PR implications of such an admission, and also the very likely possibility that, in fact, there is no such evidence of ineffectiveness.  The real problem is that if there is such evidence, it would only undermine the plaintiffs' case.  After all, if the N.Y. judiciary has become ineffective and lost its independence, why would it be appropriate for that same judiciary to resolve an interbranch dispute about judicial pay?

So here is the conundrum.  Either the judiciary is effective, in which case it cannot successfully argue that the N.Y. government has rendered it ineffective by underpaying judges; or the judiciary is ineffective, in which case it cannot persuasively claim that it should hear the case!  Heads the judges lose; tails the government wins.  If the judiciary had lost its independence to the governor and the legislature, would it really have brought suit against them, and with the expectation that one of its non-independent members would rule in its favor?

In an effort to extract themselves from this dilemma, the plaintiffs style their argument as one about the future (the judiciary "cannot long remain an independent and co-equal branch of government ... if judicial compensation is permitted to decline by virtue of inflation").  So the argument is not that the real decline in pay has rendered the judiciary ineffective; it is that, at some point in the future, the decline in pay will render the judiciary ineffective.  For that reason, the pay raise should occur now .  But why shouldn't the government be able to put off any pay raise until the date, which may be years from now, when the judiciary is not yet ineffective but closer to being so than it is today?  Without a theory about the minimum salary level that is necessary to ensure that the judiciary is effective (and the plaintiffs conspicuously lack such a theory) and evidence that this point is imminent (and the plaintiffs provide no such evidence), the N.Y. courts lack grounds for granting themselves relief.

Eric Posner, a professor at the University of Chicago Law School, is a co-author of The Executive Unbound: After the Madisonian Republic and Climate Change Justice. Follow him on Twitter.