210. Judicial independence versus judicial autonomy

An article in the September 28, 2006 Economist contained an article about the pending EU memberships of Bulgaria and Romania with this passage:

Romania is at least willing to prosecute corrupt politicians, thanks to a fearless non-party justice minister, Monica Macovei. In Bulgaria the process has barely begun. Three ministers from the same party are seen as especially corrupt. A foreigner with a big, troubled investment says of one: “My business will close if his ministry doesn't give me the permission I need. My lawyer keeps on getting phone calls offering to ‘solve’ the problem—and that involves either a bribe, or cutting one of the minister's friends in on the deal.”

In the previous government, a minister once said to an investor that “fences in this country can be high or low. The right friend can make them low. You should meet Mr Pavlov”, before introducing him to a notorious gangster. The judiciary, autonomous to the point of lawlessness, is a big problem. One judge is nicknamed “servant” because of his docile bribability.

That phrase, "autonomous to the point of lawlessness," contains an important insight - one entire missed by headline writers who tell us that "O'Connor Worries About Courts' Autonomy."  The word she actually used was "independence."  We want our judges to be independent of political pressure for the same reason we want them to be free of political bias.  But we emphatically don't want our judges to be autonomous - at least not in the sense of being wholly self-governing or "responding, reacting, or developing independently of the whole". 

The American Heritage Dictionary's more-reassuring definition of the word, which includes "autonomous judiciary" as an illustrative phrase, also lists the meaning "Independent of the laws of another state or government; self-governing."   When the judiciary becomes a state within the state, independent of the laws of the greater state, then, Houston, we have a problem.  And we do.

Examples are so common we've grown inured to them.  There's the Supreme Court tradition of kicking off the term with unanimous reversals of Ninth Circuit decisions.  (See post 207.)  That means: there's the Ninth Circuit tradition of issuing opinions that cannot seriously be defended as lawful by anybody arguing in good faith.  Sound too harsh?  Consider this passage from a per curiam Supreme Court opinion:

All of the mitigating evidence, and all of counsel's prejudicial actions, that the Ninth Circuit specifically referred to as having been left out of account or consideration were in fact described in the California Supreme Court's lengthy and careful opinion.

That is, Judge Pregerson of the Ninth Circuit (more here) deliberately lied.  He was operating independent of the truth, and indeed of reality, but I'm pretty sure that's not the kind of judicial independence Justice O'Connor had in mind.

I witnessed another example of Ninth Circuit autonomy during my recent visit to Washington, when I heard the following exchange:

Chief Justice Roberts: Your friend [the slightly sick-making jargon used in the Supreme Court to refer to opposing counsel] began his argument by saying you don't defend the decision of the Ninth Circuit below on aiding and abetting.  Is  that correct?

Mr. Meade: We do defend the judgment of the Ninth Circuit.

Which means: We defend the judgment - the ultimate result - but not the reasoning employed to justify that result.   Or, in fine: Yes, it's correct. 

In this instance, too, the Ninth Circuit relied on reasoning that a competent lawyer arguing in good faith simply could not defend as legally correct.  Which unavoidably means that the judges on the Ninth Circuit who joined that opinion - or, to be fair, the judges who joined the earlier, published opinion on which it was based, or voted against en banc rehearing of that prior opinion - either knew it was unjustified and didn't care, or were too dumb (or, more charitably, too disengaged) to notice.

Nonetheless, the Ninth Circuit, in my view, is treated somewhat unfairly in the press.  (See post 11.)  That's not because it doesn't deserve its reputation, but because other circuits do, too.  Consider the Sixth.  In a decision involving a relatively high-profile death penalty case, that court held - I'm not kidding - that the Ohio Supreme Court misinterpreted Ohio law, and as proof the Sixth Circuit cited a stray comment in a decision by an inferior Ohio court.  (See the dissent here.)  It's simply not possible that the judges who joined that opinion believed their holding was legally correct, or even remotely justifiable.

It's not a coincidence that two of the three cases mentioned are death penalty cases, and the third involves a relatively sympathetic permanent resident who faces banishment for a crime no worse than car theft.   It's understandable that the judges didn't like the result compelled by observation of the law.  So they chose not to follow the law. 

They chose autonomy - becoming a state within the state, independent of the laws that govern the masses.