Judicial Independence and Social Welfare

Judicial independence is a cornerstone of American constitutionalism. It empowers judges to check the other branches of government and resolve cases impartially and in accordance with law. Yet independence comes with a hazard. Precisely because they are independent, judges can ignore law and pursue private agendas.For two centuries, scholars have debated those ideas and the underlying trade-off: independence versus accountability. They have achieved little consensus, in part because independence raises difficult antecedent questions. We cannot decide how independent to make a judge until we agree on what a judge is supposed to do. That depends on one's views about complicated issues like minority rights, the determinacy of law, and the nature of legalism itself. These complications have paralyzed the debate.This Article presents a way forward. It reduces the debate about independence to a small set of intuitive parameters and shows how they interact. The result is a framework for identifying the optimal degree of judicial independence. The framework transcends the thorny issues bogging down the debate by allowing scholars with diverse views and methodologies to input whatever assumptions they like and get an answer to the question "how independent should judges be?"This framework generates important insights. It shows that independence can implicate a new and fundamental trade-off. Independent judges make some nonlegalistic decisions, and each such decision imposes a high cost on society. Dependent judges make more nonlegalistic decisions, but each imposes a low cost on society. The framework also shows that society may prefer a dependent judge to adjudicate minority rights and that the determinacy of law can be irrelevant to the choice between an independent and a dependent judge. Finally, it shows that the debate rests on deep and contestable assumptions about the value of law. The question is not whether the legalistic decisions that independence is supposed to facilitate are better than nonlegalistic alternatives. The question is "how much better?"IntroductionIn 2009, the Supreme Court of Iowa unanimously held that same-sex couples have a right to marry under the state constitution.1 A year later, Iowans voted out of office three justices who joined that opinion.2 In the months leading up to the vote, out-of-state groups spent nearly one million dollars on political ads targeting the justices.3 As that storm brewed, the U.S. Supreme Court confronted Caperton v. A.T. Massey Coal Co.4 That case in- volved an elected judge who, after refusing to recuse himself, cast the deci- sive vote in a multimillion-dollar contract case in favor of the principal supporter of his election campaign.5 Over a vigorous dissent, the Supreme Court held that the judge's refusal to recuse violated the Constitution.6These two events energized the debate over judicial elections.7 They also implicated the issue anchoring that debate: judicial independence.Judicial independence is a cornerstone of American constitutionalism, and it has long been a source of controversy. In the Federalist Papers, Alex- ander Hamilton argued that independence "is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws."8 According to Chief Justice John Marshall, "[T]he greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people, was an ignorant, a corrupt, or a dependent Judiciary."9 But there is another side to the story. As the Anti-Federalist Brutus wrote in 1788, "[When] power is lodged in the hands of men independent of the people, and of their representatives . . . no way is left to controul them."10This rhetoric captures a pair of enduring arguments. On the one hand, independence insulates judges from outside pressures, and that empowers them to interpret law impartially. That impartiality seems critical to the sep- aration of powers and the rule of law generally. …