Man Without Qualities

Sunday, April 24, 2005

The Envy Of The World? O, Please!

Ted Olson has created some fuss with his Wall Street Journal Op-Ed argument that politicians should lay off the judiciary, an argument that he says largely proceeds from the following premise:

We might start by getting a firm grip on the reality that our independent judiciary is the most respected branch of our government, and the envy of the world.

The envy of the world? Well, it is often and correctly noted that imitation is the sincerest form of flattery - and that should hold for envy, too. But if the American judiciary is the envy of the world, why have so few other nations chosen to emulate this most respected branch of our government? Considerations of "independence" of the judiciary in American arguments slide frictionlessly into considerations of "judicial supremacy" - the doctrine under which courts strike down unconstitutional statutes. Mr. Olson's argument is no exception. But Britain, of course, famously has no written constitution, and a written constitution is often said (by Chief Justice John Marshall, for one) to justify judicial supremacy. British courts will issue rulings of "incompatibility" where Parliament's acts are found to be in conflict with other laws, including the unwritten British constitution (or with EU and other international law). But while the British certainly consider their courts to be "independent" in their own way, the highest court in Britain (the Law Lords) is formally part of the House of Lords, and since the 17th Century the British Parliament has always retained supremacy over any ruling of the British Courts. Parliament is supreme in the Netherlands. New Zealand courts are prohibited from striking down laws passed by the New Zealand Parliament - so their courts also lack American "independence." The American constitution was a major, express exemplar for the Australian constitution, so it is no surprise that the closest approximant to the American judicial system can perhaps be found in Australia, where the courts exercise a judicial review similar to (but by no means equivalent to) the American version - but there is little in the way of an express bill of rights. The notorious "notwithstanding" clause of the Canadian constitution allows that country's parliament to pass laws squarely inconsistent with much of the country's charter.

In almost all civil law jurisdictions - including Germany - neither the judicial system nor the members of the judiciary personally enjoy the respect or authority they receive in the United States. In France, the Constitutional Council can examine the constitutionality of a proposed statute only before it becomes law and citizens have no right to petition. I recall sharing martinis many years ago with Antonin Scalia, who had then recently given up his position as a professor at the University of Chicago to take a spot on the United States Court of Appeals for the District of Columbia. Then-judge Scalia confided that his daughter had recently been an exchange student in Germany, and her German family had over dinner one evening enquired about her father's work. When the daughter explained that Nino had been a university professor, but had just become a federal judge, a silence fell over the dinner table until somebody asked the daughter the question on everyone's mind: "What went wrong?" Such is the status of a judge compared to a professor in Germany.

In contrast, the Indian Supreme Court has the power to declare a law or governmental practice unconstitutional - and has used that power in a manner arguably much more aggressive and overtly "activist" and partisan than anything attempted in the United States. Would Mr. Olson wish American courts to follow the Indian lead? India's Supreme Curt, if anything, seems to enjoy far too much "independence" for American tastes.

Recent developments in Russia drive home that there, as in most of the former Soviet bloc, the transition to an independent judiciary (whatever definition one chooses) remains at very best highly incomplete. Such countries inherited systems that had a totally different view as to the purpose of law than exists in the West. The law is supposedly seen in the United States and throughout the West as having faith in constitutionalism and a belief that government is limited by law. Soviet style governments sought to control society through law, which was a mere instrument of infinite government discretion with nothing to do with the defense of human rights or on placing other limits on the power of the state. Courts were controlled of the Communist Party, prosecutors and the executive. The law and the justice system were the tools of the state, used to advance state powers and control the citizenry - and that attitude has not been fully shed.

Perhaps other countries should value or envy an American style independent judiciary more than they do. But I think it is a fact that most jurisdictions given the chance have not chosen to adopt an American style system. In fact, to judge by the actual choices made by almost every other country, even highly democratic countries whose constitutions have recently been reworked or rewritten, it is hard to read Mr. Olson's postulate "We might start by getting a firm grip on the reality that our independent judiciary is the most respected branch of our government, and the envy of the world," and not chuckle. The fact is that the judiciary of almost every other nation occupies a much smaller quarter of the legal structure of that nation than is the case in the United States - and that seems to be by deliberate, informed choice of those other nations.

Would importing principles from constitutional structures with such shrunken judicial quarters lead to a shrinking of the authority of the Supreme Court and the rest of the American judiciary, perhaps in unexpected ways? Some American Justices - such as Breyer and Kennedy - seem determined to find out. One wonders if the Supreme Court Justices who recently have expressed such interest in importing elements of foreign law into American federal constitutional precedent keep in mind the old saying that "the law is a seamless web." Indeed, Mr. Olson lists a good many devices that could be used to shrink the judiciary in this country, even within the current constitutional framework. For example, there is no clear constitutional reason why a prosecutor or Congress could not put a judge under oath and obtain his or her testimony about a controversial decision - leading to a possible perjury prosecution. The governments of many other countries wouldn't think twice about doing such a thing. It is unlikely that these are the kinds of things Justices Breyer and Kennedy would like to see imported to this country. But such results may follow anyway. For the most part only extra-constitutional respect for the American judiciary keeps such things from happening here. And it is possible, even likely, that such extra-constitutional respect exists here largely because of how American judges have acted in the past, what kind of things they do (civil law judges, for example, can and do initiate and conduct prosecutions), and what principles they have employed in their decision making. If American judges start acting more like judges from jurisdictions in which there is less respect for the judiciary and start employing principles imported from such jurisdictions, will the American respect for the judiciary that Mr. Olson so values remain high?

In a similar vein, one might also wonder a bit at Mr. Olson's observation that "corruption in the judiciary ... is astonishingly rare in this country." Presumably he means that it is astonishingly rare in this country compared to other, comparable countries. Isn't it possible that that corruption of American judges is rare because of how American judges act, what they do, and what principles they employ in their decision making? If American judges start acting more like judges from jurisdictions in which corruption is not so rare, and start employing principles imported from such jurisdictions, will American judicial corruption remain so rare?

Do people like Justices Breyer and Kennedy know likely answers to the above questions? Has either of them has even seriously tried to ask such questions? Their public statements make that very unlikely. That could become a very big problem for all of us - including Mr. Olson.

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