Accountability to ‘the law’

Strong political accountability might be worrisome because it increases the risk that we will have a government of ‘men', not laws, and in the extreme, a system of so-called telephone justice in which decisions are determined entirely by political considerations and not at all with reference to the supposedly applicable law.

An additional preliminary point is that the distinction between political accountability and accountability to law has an important temporal dimension. Under prevailing understandings in liberal democracies, law is a human artifact, so accountability ‘to law' must involve accountability to someone.^[262] Roughly, ‘political accountability' refers to accountability to contemporaneous power-holders as rep­resentatives of today's people, whereas ‘accountability to law' refers to accountability to the people and their representatives in the more distant past. Accountability to law is a form of indirect accountability to the people in the past, taking its route through their enactments of law.

1. Accountability as correctness, method, and orientation

Too much political accountability and too much independence pose similar risks — rule by ‘men' rather than according to law.

It is tempting to say a judge is accountable to law when her decisions are correct; that is, when she does what the law at issue in the case at hand requires of her. Ronald Dworkin might be taken as advocating for a standard of correctness in his argument that there are always right answers in the law.^[263] The temptation to do so, and the more general temptation to adopt a standard of correctness, must be resisted. Dworkin's argument is that there are right answers; that an all-knowing and perfectly competent judge Hercules would arrive at those answers; that ordinary judges seeking to understand their own decisions must conclude that they have reached the right answer even if that answer differs from Hercules's; and that ordinary judges and people evaluating their work cannot know whether there are such differences between the judges' answers and Hercules'. This means, though, that specific decisions cannot be assessed according to a criterion of Herculean ‘correctness'.

Put more mundanely, judges in apex courts, and especially in apex courts with some discretionary control over their dockets, will inevitably face difficult legal questions, in which there can be reasonable disagreement over what the law at issue requires.^[264] There are too many potentially correct decisions for ‘correctness' to be the criterion for accountability to law, except in the weak sense that a judge is accountable to law when her decision falls within the (often wide) range of reasonably defensible legal interpretations.

We can make more progress by moving to a more abstract level, where we are concerned not with the particular decision at hand and the specific law, about which there is controversy, but rather with the body of law taken as a whole.

A related issue is this: at the heart of accountability to law is accountability to the historical public. But, does accountability to law give some place to account­ability to the contemporaneous public? Consider here the US Supreme Court's decision finding the Affordable Care Act constitutional.^[265] The deciding vote was cast by Chief Justice John Roberts, who held, to the surprise of many observers, that the Act was constitutional as an exercise of congress's power to tax and spend for the general welfare. The Chief Justice's action was praised and criticized as an act of judicial statesmanship. The praise took the form of saying that the deci­sion preserved the Supreme Court's legitimacy in the public's eyes; it was, in this chapter's terms, a decision promoting accountability to the contemporaneous public through the form of law. The criticism took the form of saying that the Chief Justice departed from accountability to law precisely because he inserted the non-legal factor of ‘statesmanship' into his decision-making process. The dispute turns on whether accountability to law licenses direct consideration of the contri­bution a decision makes to accountability to the contemporaneous public rather than the historical public that created the Constitution. That dispute cannot be resolved within a framework dealing only with accountability and independence.

The jurisprudence associated with American Legal Realism suggests that account­ability as ‘palpable legality' is a quite weak constraint, again especially in apex courts.

But, perhaps the Legal Realists were wrong, normatively if not descriptively, and judges should not advert to their judgments about good public policy in their decisions. This raises another possibility: that a judge makes a palpably legal decision when she uses acceptable methods to arrive at her conclusion. In liberal democracies, for example, a decision relying on the revealed word of God would not be palpably legal (even if it were correct on other grounds). To some in the United States, a constitutional decision invoking anything other than original meanings directly or derivatively through precedents themselves resting on origi­nal understandings is not palpably legal. That example, though, shows that treating the use of acceptable methods as necessary for accountability to law may not do much more than using correctness as the criterion, and for the same reason: There is reasonable disagreement over which methods of legal analysis are acceptable. So, a judge who uses any of the methods within a range of reasonable ones would be accountable to law on this understanding.^[267]

A more controversial proposition of legal realism is that the materials generally accepted as available for use in coming to a decision are usually so comprehen­sive that essentially any decision—including a decision that benefits the judge or an important sponsor personally, the paradigm of government by ‘men’—can be explained with reference to materials in that corpus. It will be almost impossible to find a decision that we can explain only with reference to the judge’s personal material interests.

A final candidate for determining accountability to law is what I call an appropriate orientation or mindset. A judge is accountable to law if and to the extent that she orients her thinking to legal materials and thinks of herself as a judge rather than, for example, a bureaucrat or politician. This is a mental disposition. It is impos­sible to discern directly, and the materials that might be used to infer the mental disposition—what the judge says in her opinions and extrajudicial statements, her temperament in court and elsewhere—may be misleading.

Accountability to law as using acceptable methods or having an appropriate dispo­sition necessarily has an important, perhaps dominant, and perhaps even exclusive, sociological component. Who determines which methods are acceptable ones; what disposition is appropriate? The obvious answer is the legal profession, or the elites within the profession who pay special attention to the judiciary.^[270] This answer inserts a contemporaneous, though perhaps narrow, public into an analysis that at its core deals with accountability to a historical public.

2. Transparency: writing opinions, publishing dissents

Scholars from the common-law tradition are likely to think that accountability to law requires some degree of transparency in judicial behavior. How can we know whether judges actually have the requisite orientation to the law unless they inform us about their decisions? Yet, the civil law tradition allows judges to generate quite terse and, on their face, uninformative judgments. The awkward place judicial precedent holds in civilian legal theory demonstrates civil law’s commitment to accountability to law. Today’s judges should be the ‘mouths of the law’ as enacted in the past, not parrots repeating what some other judges have said.^[271] The same thought underlies the practice in some nations of prohibiting the publication of dissents. That practice contributes to, or reflects, an ideology in which ‘the law’ so tightly constrains judgment that open disagreement about the law’s requirements seems indefensible. Can these practices—uninformative judgments, no dissents, and little precedential effect to decisions—be reconciled with the ideal of account­ability to law?

The ‘no dissent’ tradition appears to be under some pressure in apex constitutional courts.^[272] One reason may be a recognition that constitutional law is different from ‘ordinary’ law. Constitutional law, it might be said, distinctively combines aspects of law with judgments about sound long-term social and political policy. For example, it seems difficult to defend the proposition that the widespread invocation of a proportionality test for constitutionality is a matter of purely legal judgment, if only because it seems impossible to divorce policy assessment entirely from the judgment that some regulation, narrowly drawn to conform to the requirement that regulations restrict liberty no more than necessary, nonetheless imposes a burden on liberty disproportionate to the accomplishment of concededly permissible social goals. Judges on constitutional apex courts may find it difficult to think that they are merely the ‘mouths of the law' when they enforce constitutional law understood in this way.

The legal realist tradition suggests that one cannot easily defend the claim that constitutional law is distinctive in its combination of legal and policy judgment. Yet, whatever pressure there is for more discursive opinions in apex courts dealing with ‘ordinary’ law seems much weaker than the pressure for such opinions in constitutional courts.^[273] Another feature of civilian legal discourse may reconcile terse or opaque decisions with the ideal of accountability to law. Mitchel Lasser argues that the opinions of the apex courts in France dealing with administrative and ordinary civil law may be opaque but that the jurisprudence of those courts is not.^[274] They achieve transparency, and thereby accountability to law, because the opinions are accompanied by, and are integrated with, published material laying out the arguments made to the court and offering scholarly comment on the decisions.

Notably, the existence of scholarly commentary introduces into the discussion of transparency in civilian legal systems precisely the same constraint that profes­sionalism imposes in the common law world. That is, in both systems professional norms ultimately determine whether an opinion is appropriately oriented to ‘the law’ and so whether judges are indeed accountable to the law.

D.