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Courts are Different
By Luke Bierman
Director of the Institute for Emerging Issues
North Carolina State University

Courts are different. The role of the judicial branch in the American republic is intended to complement, not duplicate, the roles of the legislative and executive branches. Separate institutions, with unique functions and responsibilities that are executed in distinct ways, lie at the core of American governance, which is rooted in the constitutional design. For well over 200 years, America has progressed with these fundamental distinctions intact. Recent trends give cause for concern about the continuing efficacy of these guiding principles, about whether courts will continue to remain different.

Separation of powers is a principle not mentioned explicitly in the federal Constitution but is so inherent in the constitutional design that its fundamental nature is not subject to serious question. Indeed, James Madison characterized the doctrine of separation of powers as “a first principle of free government” and Thomas Jefferson recognized the distribution of political powers into separate branches as “the first principle of a good government.” The distribution of governmental powers – legislative, executive and judicial – into separate institutions was essential to the republican form of government contemplated by the Constitution and, in fact, guaranteed to the states.

This principle of separation is so basic to the governmental structure that it is not possible to imagine an American government – state or federal – organized without three separate branches of government executing distinct powers. We may allow variations in the organization of those branches, such as the unicameral legislature in Nebraska or the varied hierarchical structures of state court systems, but we would not tolerate a government that did not provide for a separate branch to execute any one of the three functions of government. Separate institutions, exercising the legislative, executive and judicial functions, simply are not negotiable in the constitutional republic contemplated by and guaranteed to the states by the Constitution.

The judicial branch then is, by design, an essential element in this system. It exists with a distinct function and presence in the political and governance system. Its role is as much to check the other branches as it is to resolve disputes in a manner consistent with a civilized society. The debates focusing on the legitimacy of judicial review, settled over the course of more than 200 years of experience, seem to have been resolved. To encroach on this function diminishes the constitutional design and the guarantee of republican principles promoting self government.

For much of the country’s history, this system has worked pretty well. The judiciary, although facing periodic crises, has executed its mission as the bulwark of the Republic, as characterized by Alexander Hamilton. In the last century, in particular, a variety of tools were devised to protect the judicial function. For example, a code of judicial ethics was formalized early in the 20th century and provided judges with insulation against speaking about issues likely to come before them. This code preserved important judicial attributes of independence, impartiality and accountability. Eliminating judicial elections in favor of appointive systems, known generally as merit selection, was also viewed as a mechanism to protect the judicial function from political encroachments that would diminish its capacity to serve as a check and, hence, its effectiveness.

Moreover, the judiciary operates in ways that distinguish it from the legislature and executive, supporting its unique role in the constitutional design. Judges employ a judicial process rather than a legislative or executive regulatory process. In stark contrast to other methodologies for resolving issues, the judicial process contemplates an adversary system focused on a particular legal dispute resolved with deliberation before decision making. Judges listen to competing presentations offered in accordance with strict rules of procedure, with very precise limits on how information is communicated. There is neither lobbying in the legislative or executive use of the practice nor discussions outside the presence of an adversary. Decision making is based on the facts and law of particular cases, derived from prior decisions in the process known as stare decisis as applied against the background of legislative, social and personal circumstances. It is not intended to resolve broad policy disputes, although we recognize that judicial decisions sometimes have that effect. Unlike most other public venues where disputes are resolved and decisions are made, written decisions in judicial proceedings are the norm. Often such decisions are deduced through a collegial process of give and take, whether with colleagues in courts sitting in panels or with clerks in courts sitting solo. Errors can be corrected through the appellate process or a number of other available procedures. The ethical behavior of judges is maintained through adherence to the codes of judicial conduct that specify the bounds of proper judicial activity.

These distinctive characteristics of the judicial process are conducive to the role contemplated for the courts. As a check on the branches with more broad policy making responsibility and more immediate and direct representation of the polity, the judiciary is distinguished by insulation and isolation, by impartiality and independence. Rather than reflect the preferences of the electorate at a particular time, the factions that can coalesce in the legislature and executive as warned against by Madison in Federalist No. 10, the judiciary relies on principled decision making for its legitimacy and authority. It is the least dangerous branch. Impartiality, long horizons and deliberation are its hallmark, if it is to remain true to the intent and design of the constitutional contemplation. For the greater part, judges are able to do just that, resolving literally millions of cases each year, most without serious controversy over the propriety of the outcome. The brilliant Supreme Court Justice Benjamin Cardozo once observed that nine out of ten cases can come out only one way.

More recently, however, the judiciary has suffered from changes that can adversely affect its capacity to fulfill its constitutional role. For example, campaign fundraising in judicial elections has escalated dramatically in the past two decades. The spending in judicial campaigns now regularly hits million dollar figures, amounts unheard of just a few years ago. The participation of special interest groups also has become routine in judicial elections; something also not seen until recently. More nefarious, contributions and participants are coming from groups organized with names that mask the true identity and intent of its founders. Likewise, the 2002 Supreme Court decision in Minnesota Republican Party v. White and its progeny that eliminated some restrictions on judicial campaign speech have contributed to a judicial campaign environment that mirrors the worst examples of legislative and executive elections. Judicial candidates are called upon to describe their views on controversial issues without regard to the facts or law of particular cases. They are empowered to characterize others in shameless ways in pursuit of electoral success and encouraged to employ the worst campaign tactics in order to win. While these developments allow more information into the free exchange of ideas, they do so at the cost of undermining the differences that have contributed to the judiciary’s success as an independent branch of government.

Also infringing on the capacity of the judiciary to fulfill its mission in the separation of powers is the incidence and use of court stripping legislation. The use of laws diminishing a court’s jurisdiction is nothing new. Indeed, the famous 1803 case of Marbury v. Madison that established the judiciary’s ability to declare acts of Congress unconstitutional was in part about court stripping. Still, the scope and aggressiveness with which we see this conduct appears to be on the upswing, especially with respect to state courts. For example, Congress regularly has had bills introduced to remove certain kinds of cases from the federal courts’ jurisdiction. However, in the last 15 years a number of these bills, aimed at controversial issues involving prison, religion and death penalty litigation, have passed. Likewise, in many states there are significant bills intended to remove abortion, criminal justice and other controversial issues from the courts’ jurisdiction. Apart from the impact of these laws on allowing individuals access to the courts, traditionally offered broadly in America to ensure protection of rights and liberties, these approaches can intimidate courts and minimize their effectiveness as a check in the separation of powers.

Other avenues of change for the judiciary are now apparent. Some groups are petitioning to alter, in significant ways, the relationships among the branches of government. For example, in South Dakota a ballot proposal would impose limits and even penalties for judges who decide cases in ways that are at odds with certain standards established by those in power. This is precisely the opposite of what the judiciary is supposed to do in our republican democracy. Indeed, it may be that these kinds of adjustments in the role of the judiciary are precisely the kinds of changes that would so alter the relationships among the branches as to affect the fundamental nature of the separation of powers. Calls to remove judges through impeachment and other means or to discipline them for the results of their decision making can not only intimidate the judiciary but also run counter to the American tradition of judicial independence in decision making. Judicial budget cuts and other reductions in the resources allocated to the courts are other means used to coerce the judiciary into reaching preferred outcomes.

In these respects, then, perhaps the current trends for the judiciary are not so different from what is happening in the other branches of government. No longer are judicial elections quiet affairs run on shoestring budgets with little controversy and limits on judicial sloganeering. No longer are the courts left to decide cases in ways that comport with the judicial process and mission of the judiciary within the contemplation of separation of powers. These are unfortunate developments if we take seriously that the design of the American Republic intends for the judiciary to be different. Viva la difference.

Luke Bierman, Director of the Institute for Emerging Issues at North Carolina State University, also is Teaching Associate Professor of Political Science at the University. Professor Berman writes, lectures and consults often on the role of the judiciary in the American democratic republic.

Also on League of Women Voters website (Judicial Independence Projects); used by permission of the author.