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The Evolution of Judicial Accountability

How do you design a judicial system that is both independent and accountable? Professor Keith Whittington talks about how the early states experimented with the process of choosing and evaluating judges. People didn’t want judges who were beholden to either the governor or the legislature. Many states decided to elect judges so that they would be democratically accountable, while also empowering the judiciary to make decisions apart from the other branches of government. https://youtube.com/watch?v=6AABqxsr_cY


The American states continued to experiment after the formation of the U.S. Constitution. So how do you create effectively independent judiciaries as well? The states in part because their constitutions are easier to amend than the federal constitution have seen more experimentation across American history as to how to design courts. And part of the concern in the early state experiences, the judges are not independent enough. They're being appointed by governors. And part of the concern of citizens in those early republics is those judges remained too deferential to those governors, too deferential to the legislatures. And so the people in the states increasingly come to start looking for ways of making those judges more independent of the executive and legislative branch. And for them they wound up settling on many of the states having judges be elected. So that just like the effort of putting an executive branch on an independent foundation and being elected by the people and the legislative branch on independent foundation of being elected by the people, if you elected judges, they too would be independent and wouldn't simply be the pals of the governor that were being appointed to the bench. We obviously have not had that experiment at the federal level. The U.S. Constitution doesn't do that. Instead, we've found that life tenure judges accomplish much the same thing. The judges are distinct enough, they have a long enough tenure that they grow separate from the executive branch. They aren't constantly looking over their shoulder or thinking about what the president who appointed them wants them to do for example. But it's no sure thing as to how exactly you can convince judges not to be thinking about their friends and the rest of the government and how do they act independently, but also how you convince judges that they in fact are powerful enough that they can act on their own. On the one hand, we're worried that judges might become too powerful and abusive in their own right. Alexander Hamilton in the Federalist Papers is concerned in part with reassuring the anti Federalists, the judges would not be too powerful On the other hand, you also have to worry about judges being too weak, not actually capable of getting things done. And that's part of the experience of the early American states as well, where the sense is those courts don't feel strong enough to resist abusive actions by legislatures and governors for example. And so states started looking for ways of trying to empower courts. So not only would they be independent, but they would feel independent enough that they could actually push back against state legislatures and state governors in various ways. And that's a challenge for the federal court system as well. How to feel independent enough, but also how do you feel secure enough in your own institution, your own authority that you can successfully push back against the legislature or president who is pursuing policy goals or a political agenda that seems to run contrary to the Constitution itself.

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