Introduction
Judicial accountability is one desideratum in institutional design; judicial independence is another.1 Put another way, in examining judicial accountability we must ask: accountability to whom, and how much? One answer is that judges in modern democracies are to be accountable to the people roughly contemporaneously, just as other wielders of public power are.
Judges wield public power, and they ought to be accountable to the people to the extent that they exercise discretion. Call this political accountability. Yet, ‘too much' political accountability is troublesome, because it conflicts with the independence we seek in judges. And, it might be thought, judges do not make discretionary choices, or at least the same kinds of discretionary choices that others who exercise public power do. They ‘merely’ interpret and enforce the law.Another answer, then, is that judges are to be accountable to ‘the law’, and somehow ‘the law’ is accountable to the people as they were constituted at some earlier time. Law intervenes between the people and judges, allowing judges to be what I will call derivatively accountable while maintaining independence. Yet, ‘too much’ judicial independence can also be troublesome, if the mechanisms of indirect accountability are so weak that judges are in practice politically unaccountable except in some quite loose, even metaphorical sense: ‘Too much’ independence, and judges wield power in the service of their own aims, mediated only by their own understanding of what ‘the law’ requires of them, which may not be much, or which may be what they would try to accomplish were they merely private citizens.
The tension between accountability and independence is not unique to judges. Whenever we design institutions to commit some substantial amount of public power to professionals—scientists or social workers, no less than lawyers and judges—we do so because we want to combine accountability to the profession’s norms with accountability to the people.
Consider for example a system in which the government makes grants to scientists to pursue their inquiries. We could sensibly assign authority to select grantees to committees of scientists, which we hope will decide among applicants in substantial part with reference to the scientific merits of their proposals. The grant agency should be accountable to ‘science’, the norms of its enterprise. But, we might also want the grant agency’s scientists to decide with reference to public preferences—to make progress on some scientific inquiries relevant to pressing problems of public policy before examining more esoteric (‘basic’ or ‘pure’) scientific questions, for example. Here, too, political accountability occurs through mechanisms of indirect responsibility: some elected officials will in the end examine the agency’s decisions and decide whether to increase, maintain, or decrease the agency’s budget for grants by evaluating its performance.In both settings we seek some balance between accountability to professional norms and accountability to the public. Too much of either will generate undesirable outcomes. I limit the discussion hereafter to the legal setting (though parallel issues arise in the scientific one). Too much political accountability, and some litigants who ought to prevail under concededly applicable legal norms will lose. We can readily describe that as a violation of the litigant’s fundamental right to a decision ‘according to law’. Too much accountability to an impersonal law, and judges will be able to pursue their personal projects by describing their decisions as consistent with, or even compelled by, the law. Perhaps because of their own professional commitment to ‘the law’, legal theorists tend to emphasize the risks of too much accountability to the people, defending judicial independence and supporting mechanisms of indirect political accountability with relatively little concern about the extent to which those mechanisms in fact promote such accountability.
This chapter offers an overview of mechanisms of accountability, both to ‘the law’ and to the people.
It focuses on the accountability of judges on apex courts,[237] those whose decisions are not subject to review by (judges on) other courts.[238] The reason is two-fold. First, subordinate judges might be subject to accountability mechanisms common to them and to apex courts — scrutiny of their decisions by the profession, for example. But, subordinate judges are also subject to review by hierarchically superior judges, whereas judges on apex courts are not. Review by hierarchical superiors is a common phenomenon in every complex institution. In this, courts are no different from any other complex bureaucracy. Superiors in the judicial bureaucracy face problems of securing the accountability of inferiors to the norms the superiors hold (be they norms of adherence to ‘the law' or any other norms). These problems, generically described as principal-agent problems or agency slack, are pervasive. The superiors may not have the capacity to review every decision by subordinates with enough attention to ensure compliance with the superiors’ norms. The superiors’ directives may not be precise enough to ensure routine compliance even by the best motivated subordinates. Considered as bureaucracies, courts do not raise distinctive accountability questions, and I do not consider them in detail here. The mechanisms of accountability I describe are relevant to subordinate judges to the extent that such judges are independent, either because of agency slack or because they and their hierarchical superiors hold a view of the law’s requirements under which individual judges are fully responsible to ‘the law’ alone.Second, and more important, it is difficult to defend the proposition that judges on apex courts, and in particular on constitutional courts, exercise no discretion at all in deciding cases. Further, under most views judges on apex courts properly take into account the policy aspects of their actions, either as a component of the justifications they offer for their decisions or as a constraint on how far specific legal principles should extend.
To that extent judges on apex courts ought to be accountable politically, though not necessarily to the extent that other policy-makers are.Finally, although the discussion is framed in terms of judicial accountability generally, issues of accountability and independence are most pressing with respect to decisions about constitutional law. Legislatures and executive officials can revise decisions on non-constitutional matters through their ordinary policy-making processes. Issues of accountability and independence are not entirely irrelevant even here, because revising decisions thought to be mistaken consumes political time and energy that could be devoted to other matters that the policy-makers on their own would have given higher priority. ‘Inertia,’ in short, may allow ‘mistaken’ decisions to remain on the books. The extent to which constitutional questions are different depends on issues of constitutional structure. Constitutional decisions thought to be mistaken can be revised directly by amending the constitution.[239] The ease with which that can be done depends on the decision-rule of constitutional amendments. A relatively easy amendment rule means that there might be few systemic concerns about excessive judicial independence, and the issue of judicial accountability might be largely irrelevant. Systems of weak-form constitutional review, which authorize revision of constitutional decisions through the ordinary legislative process, similarly can promote the compatibility of constitutional law with current policy preferences, and do so without trenching on judicial independence.[240] The discussion in this chapter puts these structural issues to one side, and deals with the issue of judicial accountability in systems with strong-form constitutional review.
B.