Judicial Independence: Playing Politics with the Constitution
I begin with a question: why have a conference on judicial independence? To find the answer, one need only read the newspapers. Judicial independence-as well as its political counterpart, judicial impeachment-is a hot topic these days because some in Congress have threatened to impeach judges for delivering unpopular decisions. So I take as my subject in this Essay the question of whether the constitutional provisions safeguarding judicial independence protect judges against impeachment for issuing rulings that Congress considers erroneous or even loathsome. When we talk about judicial independence, we have to separate two questions. The first question is the extent to which judges are or ought to be independent of the political branches of government. May Congress impeach judges simply because it disagrees with their rulings? Despite the current popular inclination toward limiting this kind of judicial independence, I think this first issue involves a constitutional rarity-an easy question with a clear answer. Indeed, there is a fairly large body of literature that reaches the same conclusion. I will therefore begin my remarks with a relatively brief explanation of that clear answer. Regardless of whether judges ought to be independent of the political branches, however, judges must still remain faithful to "the law." In interpreting the Constitution, for example, judges cannot claim to be independent of that document. Nevertheless, there is a great deal of dispute about what it means to be faithful to the Constitution.' This second question is in fact linked to the first: much of the controversy about the extent to which the political branches can or should control federal judges stems from disagreement with the way in which those judges have interpreted the Constitution.