Bench Memos

Re: Law Professors for Judicial Imperialism

Ed Whelan’s takedown of law professors Jesse Choper and Herma Hill Kay is temperate, measured, and kinder to Choper and Kay than they deserve, inasmuch as Ed takes seriously the proposition that they might have an argument.  (He finds that they don’t, but it’s a fair judgment reached after careful consideration.)

Choper and Kay insist that the Iowa legislature cannot rightly impeach any of the state supreme court justices for their notorious usurpation in Varnum v. Brien (here is my own take on the case at the time).  But the professors reason implicitly thus: Judicial independence exists to serve the goal of untrammeled judicial review.  Judicial review means the power of judges to say the constitution means–well, anything they want it to mean, so long as they are “candidly grappling” with the legal issues in each case.  Once they have decided the constitution means X, it does mean X.  Thus judicial independence (whenever “candid grappling” is going on) is of absolute value, indistinguishable from constitutionalism itself, and any effort to rein in that independence is an attack on constitutionalism and the rule of law.

As I say, this is the implicit reasoning of Choper and Kay.  To the extent that they reject any part of the above, their argument collapses entirely.  Indeed, it seems they do reject some of it, because they do not complain of the defeat of three of Iowa’s justices in the November retention election.  But if the legislature’s impeachment threat jeopardizes judicial independence (and with it the rule of law), then surely the people’s ire at the polls was an identical threat.  Both the retention election, and the impeachment process, are available methods in Iowa for disciplining a judiciary run amok.  Choper and Kay offer no reason to accept one but not the other.  And more importantly, they offer no reason for believing it is inappropriate, in this instance, to undertake the disciplining.

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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