Essay

Although recently several prominent leaders of the federal judiciary and the American Bar have decried contemporary threats to judicial independence as both serious and unprecedented, this Lecture offers an alternative perspective. I contend that the independence of the federal judiciary is secure. I argue that contemporary criticisms and challenges of the judiciary are relatively mild and, on balance, beneficial.

I review three historical challenges to judicial independence and offer a lesson to be learned from those challenges. The most serious challenges to the independence of the federal judiciary occurred during the Jeffersonian, Reconstruction, and New Deal eras. The federal judiciary responded to those challenges by exercising restraint, which offers a lesson for those concerned about contemporary threats to judicial independence.

Some contend that contemporary threats to judicial independence include public criticism of judicial decisions, legislative attempts to curb the judiciary, and political battles to appoint federal judges, but these challenges are modest and even promote judicial independence. Public criticism, which is essential to democratic government and even judicial decision-making, is not a serious threat to judicial independence. Legislative curbs on the judiciary are an exceptional part of the political process against which the judiciary has ably defended its decisional independence. Finally, the confirmation process, however difficult or unpleasant, is a necessary check for those nominated for life-tenured judgeships. Ultimately, federal judges have the foremost responsibility for safeguarding their independence by exercising restraint.

Although all interpretive methods must grapple with the issue of stare decisis, the issue is particularly acute for originalists due to the potentially radical discontinuity between original meaning and modern doctrine. An unmediated enforcement of original understanding of the Constitution would likely reverse countless precedents and impose unacceptably high costs in terms of the rule of law. On the other hand, upholding a precedent despite its variance with the original understanding undermines the very legitimacy of legal review according to most theories of originalism. Focusing on the most common normative basis for originalism, popular sovereignty, the article identifies those cases capable of a principled application of stare decisis and those judicial errors that ought to be treated as presumptively in need of being overturned.

Popular sovereignty both reflects and builds upon the normative theory of democratic rule—government by the majoritarian consent of the governed. The costs of judicial error under this approach waxes and wanes depending on the degree of departure from the people’s will and the constraints placed on the ability of political majorities to respond to the court’s error. The greater the intrusion into the democratic process, the greater the costs of judicial error and, accordingly, the greater the need for “weightier” pragmatic arguments if precedent is to control. Judicial errors that leave an issue under the control of political majorities generally impose such low costs in terms of constitutional legitimacy that the pragmatic considerations of stare decisis may come to the fore. On the other hand, judicial errors that completely remove a matter from majoritarian politics impose such high costs in terms of constitutional legitimacy that they ought to be treated as presumptively in need of overruling—a presumption I refer to as reverse stare decisis.

Not-So-Serious Threats to Judicial Independence

The People or the State?: Chisholm v. Georgia and Popular Sovereignty

Originalism, Popular Sovereignty, and Reverse Stare Decisis