Departmentalism Again

J. Noble jfnbl at
Sun Nov 20 21:36:49 PST 2005

I didn't mean the Jackson quote to be taken literally, but I think 
much of what the Court does (and doesn't) turns on the cultivation 
and protection of the Court's legitimacy and effectiveness, which 
depends on public regard and political acquiescence. Jackson's 
perhaps apocryphal truism is brought home by Brown v. Board, where 
the Court would have been emasculated if it had misjudged the 
political tide and Eisenhower refused to mobilize the Arkansas 
National Guard in Little Rock.

At the same time, some of the Court's worst decisions reflect the 
Court's acknowledgement of its limited ability to defy public 
sentiment and political will. Dred Scott might be regarded as 
indefensible until you consider the alternative -- an early start on 
the Civil War blamed on the Supreme Court. Korematsu can only be 
explained by the Court's sense of political accountability -- a 
decision to shut down the internment camps might have been defied, 
and if it wasn't, it would surely have cast the Court as undermining 
the war effort and threatening national security.

At 9:12 PM -0500 11/20/05, RJLipkin at wrote:
>      (Originally Sent at 9 AM 11-20-05: Computer problems throughout the day))
>      Mark's post is directly responsive to my query, though I might 
>quarrel with his reliance on "an interactive process" as 
>satisfactorily answering the general question of judicial 
>accountability (though he may very well have offered it as only an 
>answer to my narrow question).
>      Judicial accountability resting on senatorial confirmation is a 
>puzzling form of accountability since once the Senate acts the 
>electorate has no further direct way to discipline or reverse the 
>opinions of wayward justices sometimes for two generations. Short of 
>impeachment, amending the Constitution, Article III appellate 
>control we must rely on popular opinion and transformative 
>appointments which may take decades
>to operate all the while distorting politics in their wake. Imagine 
>if the accountability of presidents and congress persons were as 
>indirect, as difficult, and as disruptive as these forms of 
>constitutional change. I suspect we would all be screaming that 
>republican democracy was bloody well lost. Deriving judicial 
>accountability from senatorial accountability is a rather effete 
>form of accountability at best; at worst it is "accountability" in 
>name only. As for Jackson's remark--even though he may not have 
>actually made it--as the or even a paradigm of judicial 
>accountability, I suspect republican democracy and judicial 
>accountability are doomed if we must rely on it in contemporary 
>America.  It's difficult to appreciate how such a circuitous process 
>can be described as accountability at all.
>      We tend to conceive of judicial independence as a 
>dichotomy between no independence and a virtually absolute or at 
>least a very strong form of independence.  There are many 
>intermediate forms of judicial independence that, in my view, 
>protect republican democracy whiles at the same time reserving a 
>proper--even equal--role for the courts.  Exploring these 
>possibilities might be more productive than engaging in the same 
>tired defenses of the status quo regarding the courts. The question 
>of proper institutional design in a republican democracy cannot, in 
>my view, be satisfactorily answered unless there's adequate 
>criticism of status quo arrangements.  And this is not possible 
>without risking--and of course it is a risk--replacing the status 
>quo with a worse form of institutional design. Incremental but 
>significant changes, for example, term limits (as only one possible 
>alternative) might be worth considering, at least for those unhappy 
>with the present arrangement.
>     List members have raised what I think are the most important 
>questions in constitutional theory, questions which inform my own 
>research daily. But my original question was much narrower, and I 
>will retire from this thread to return to trying to understand the 
>relationship between departmentalism or interpretive equality and 
>the popular constitutionalist's response to the complaint that 
>interpretive equality cannot accommodate the need for final 
>authority in constitutional interpretation.
>  Bobby
>Robert Justin Lipkin
>Professor of Law
>Widener University School of Law
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