Alexander Hamilton once wrote, “I agree that ‘there is no liberty, if the power of judging be not separated from the legislative and executive powers.’” The Federalist No. 78 (Alexander Hamilton) (quoting Montesquieu, I The Spirit of Laws 181 (1748)).
Separation of the judicial power from the legislative and executive powers is a necessary precondition for liberty, and it depends upon two important restraints. Restraining the legislature and executive from exercising or influencing judicial power—this is called judicial independence. And restraining the judiciary from exercising legislative power—this is called judicial deference. Both judicial independence and judicial deference are essential to the just administration of law. Sadly, neither of these restraints is properly understood or applied today.
Judicial independence is necessary to prevent politics and special interests from tainting the adjudication of individual rights, but recognition of its importance has waxed and waned. At times, “the ideal of a court of justice has been the omniscient and inexorable judgment seat of God.” Brooks Adams, The Theory of Social Revolutions 36 (1913). At other times, the idea of a judiciary that was independent from the legislature has been “treated with the utmost contempt” John Quincy Adams, I Memoirs 322 (1848) (recording sentiments expressed to him by Senator Giles of Virginia). A striking example of the fragility of judicial independence in American history was Franklin D. Roosevelt’s threats to increase the number of justices on the Supreme Court to obtain favorable rulings on New Deal legislation. Roosevelt was frustrated with the Supreme Court’s consistent decisions that his proposed legislation violated the Constitution. On Friday, January 11, 1935, then Secretary of the Interior Harold L. Ickes wrote in his diary,
The Attorney General went so far as to say that if the Court went against the Government, the number of justices should be increased at once so as to give a favorable majority. As a matter of fact, the President suggested this possibility to me during our interview on Thursday, and I told him that that is precisely what ought to be done. It wouldn’t be the first time that the Supreme Court had been increased in size to meet a temporary emergency and it certainly would be justified in this case.
Harold L. Ickes, The Secret Diary of Harold L. Ickes 274 (1954). For reasons that are disputed by historians, Justice Owen J. Roberts relented and changed his position on the constitutionality of the New Deal in a case called West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). This surrender made Roosevelt’s plan to expand the court unnecessary, and is sometimes called “the switch in time that saved the nine.” Justice Roberts insisted that he hadn’t changed his vote in response to Roosevelt’s threats, but whether or not this is true, it was clear that Roosevelt had already resolved to change the membership of the court to get the outcome he wanted. The threat to judicial independence was real.
Judicial independence is essential to the preservation of liberty because judges bear the heavy burden of standing against the will of the majority when enactment of the majority’s will would infringe upon individual rights. But the obvious follow-up question is what are the individual rights that judges should protect? Or put another way, what is to prevent judges from inventing rights and striking down legislation for political, personal, or ideological reasons? The answer is that a judge is obligated and authorized to protect only those rights recognized in the charter from which he or she receives judicial authority. This limitation prevents the judge from becoming a super legislature with a lifelong term. With this limitation, judges become as Hamilton described, having “neither force nor will, but merely judgment.” The Federalist No. 78 (Alexander Hamilton). If judges respect this limitation, both judicial independence and judicial deference are served. The judge defers to the Constitution for the rights that he or she is authorized and obligated to protect, and then acts independently of the legislature and executive in protecting those rights.
The Constitution provides two separate sources from which judges can draw information about the rights that they are obligated to protect. The more commonly recognized source is the Bill of Rights. Incidentally, it is strange that the Bill of Rights has become the primary source, because it was not part of the original Constitution and was thought superfluous by many of the founders, including as James Madison. The second source of information about the rights that judges are obligated to protect is the language that limits the role and authority of each of the political branches. This second source does not list individual rights, but it implies them by confining the authority of the executive and legislative branches. Sadly, this second source of information has been largely ignored by judges, and as a result, the legislature and the executive now act far beyond their constitutional limits. Today, judges usually refuse to give any real protection to rights that are not specifically listed in the Bill of Rights. This failure of judges to protect individual rights other than those listed in the Bill of Rights is wrongly identified as judicial deference. During the recent struggle over the nomination of Justice Sotomayor, Attorney Jeff Rowes wrote a compelling article in the Wall Street Journal highlighting this problem:
The time-honored justification for judicial deference is that when courts refuse to enforce property rights and allow economic liberties to be trampled by legislatures they are showing respect for the democratic process. But this notion is not faithful to the duty of the judiciary. The Constitution’s framers understood that legislatures are as much nests of vice as of virtue. That is why they went to such lengths to define the limits of government, set forth our rights broadly, and create an independent, co-equal branch of government to protect those rights.
Jeff Rowes, Judicial ‘Activism’ Isn’t the Issue, Wall St. J., June 6, 2009, at A13. This misunderstanding of judicial deference undermines individual liberty and misleads people about the judge’s role. True judicial deference means that unless a law violates the Constitution (either by running afoul of a provision of the Bill of Rights or by exceeding the legislature’s limits of authority) a judge will interpret and apply that law as it is written.
This confusion about judicial deference is largely due to the counterfactual and counterhistorical claim that the Constitution does not embody a particular socioeconomic philosophy. The record of the debates over the language of the Constitution, the intellectual climate of the time, the size and nature of government at the time, and the text of the Constitution all plainly show that the Constitution was enacted on a foundation of natural rights and an assumption of economic liberty. Ever since the ratification of the Constitution, however, power-hungry men and women have sought to destroy this foundation and make the Constitution infinitely flexible. Consequently, any act by the judicial branch to check the excesses of the legislature and the executive branches that is not supported by both the plain text of the Bill of Rights as well as popular feeling is branded “judicial activism.” At the same time, real judicial activism goes unnoticed as judges expand statutes beyond their plain meaning and restrict private actions that don’t fit the judges’ worldview.