VI. More About Judicial Independence and Komnas HAM
More About Judicial Independence
I submitted my paper this week for the Indonesian Constitutional Court International Symposium, which will be in Jakarta from August 9-12. It was accepted!
Inherent Powers and Funding
I’ll give a little preview here. It comes as no surprise that there has been a lot of controversy about recent decisions of the Supreme Court. Some commentators have been very creative about thinking about ways to neutralize judicial review. Congress has a lot of authority to define the jurisdiction of the federal courts and Congress can maybe write some jurisdiction stripping bills to strangle the scope of their review. The federal judiciary also must submit a budget every year. This goes to the executive branch, which is prohibited by statute from altering the proposed spending before sending the budget to Congress, but the President can comment. Congress must pass a normal appropriations bill to fund the judiciary.
Can Congress just defund the Supreme Court or the judicial branch more generally? Mechanically, surely yes: they would just pass a bill. Article III says that Congress cannot downwardly adjust federal judicial salaries. But it would be hard for judges to write opinions without air-conditioned buildings, clerks, software licenses, and so on, and Congress could try to just take their desks away.
I think the Court would surely say that offends separation of powers. The point of the judicial salary provision is to restrict one avenue for Congress to interfere with the business of the judiciary of adjudicating cases and controversies and make the courts subservient to another branch. It does not really follow that because you are not messing with salaries specifically that anything else goes. First, I think the Court would feel indignant about this and take the challenge by booking alternative space for their conferences, continuing to trumpet their constitutional mission and independence.
Second, the Supreme Court could invoke the judiciary’s inherent powers to say that Congress must adequately fund them. Congress would be setting up a constitutional crisis about judicial review by defunding support for the justices, which is also what they would be doing by attacking judicial salaries. There are some cases in the federal courts interpreting the salary provision but little about the judiciary’s inherent powers to compel funding for other things.
There is a pretty long tradition in the state courts though. Historically, state trial courts have been funded mostly by local government. The Circuit Court would go to ask for money from the local board of supervisors, mostly drawing from property taxes. On many occasions, without even any animus from the board of supervisors, the trial court would make a lawsuit and ask the state Supreme Court to declare that the trial court is inadequately funded. Maybe the board of supervisors has not addressed a facilities issue, there is a lot of noise pollution, and it’s impossible to hold trials. Sometimes the Supreme Court would say something like, “yes, separation of powers requires that the board of supervisors adequately fund the local trial court, and we are finding that it is not adequately funded, so we are ordering you to authorize this expenditure or make some plan to figure this out.”
There was an odd asymmetry between the state supreme court and these local county executives that helped this work. The state supreme court would issue an order to the board of supervisors, and this problem was under the radar for most people. The conversation changed towards the end of the twentieth century when a lot more states started giving budgeting authority to the state supreme courts and administrative offices of the courts, which were now tasked to negotiate funding for the trial courts with the state legislature. The point of this was to equalize funding more across the state judiciary and insulate the local trial courts from this friction with their local government.
There have only been a couple cases where the state supreme courts have exercised the same power to declare the state legislature violated separation of powers in some funding dispute about their authorizations. Not too long ago, the legislature of New York refused to pass an appropriations bill to increase judicial salaries without also increasing their own salaries. The Governor of New York kept vetoing their bills that included legislative salary increases, and the judiciary was caught in the middle feeling their needs were getting sidelined to this problem that is irrelevant to the judiciary. The state high court, the New York Court of Appeals, without necessarily saying that funding for the judiciary is “inadequate” without the proposed salary increases, lamented that judicial salaries were being used as a bargaining chip and instructed the other branches to knock it off and consider in good faith whether and what salary increases are reasonably necessary for the judiciary to carry out its duties.
There is some potential for embarrassment here though. It is not lost on people that the courts have an interest in their own judges’ salaries. In that New York case, you would see in the news coverage that some felt like the judiciary was exerting some kind of privilege, which is not entirely untrue. Teachers and firefighters cannot just order the legislature to fund them. Well, maybe the teachers could sue under a state constitutional provision saying that education must be adequately funded, but that’s a separate issue.
The judiciary is saying that because they are a separate and co-equal branch that they deserve a different kind of consideration, and that without funding they cannot perform this check on the other branches or do their mission of adjudication, so the legislature must negotiate with them fairly to fund them adequately to those ends. The courts really carry the burden here to justify their budgets, and regardless of the outcome of one case or another they are going to have to continue working with the legislature, so they do not usually want to damage that relationship by suing except as a last resort.
The rest of my paper focuses on how courts have sought to improve that relationship by sharper justification of their budgets and basically lobbying for themselves. I will not get into that as much here but mainly I am focusing on performance measures tied to strategic plans and lobbying strategies to build long-term confidence in the self-governance of the judiciary. There are usually cycles to these discussions where the United States will enter a major recession, the state legislature is taking severe austerity measures, and the courts are trying to defend their budgets from across-the-board spending cuts.
The American Bar Association and National Center for State Courts produced a lot of work on this subject back in the early 2000s and again after the 2008 recession. There is a theme here though about how whatever strategy the courts decide to pursue might impact public confidence, and it seems to me there are difficult risks and tradeoffs no matter how the courts approach the issue.
Why care about this?
We have a mythology in America about the “switch in time that saved nine” that is lurking in the background of discussions of judicial independence, suggesting that the other branches can (or should) intimidate the courts into changing their jurisprudence. I think that can become dangerous. If we blow up judicial review, we do it for everybody, not just for the other team. The risk here is that everyone will just ignore the court’s opinions, leaving the White House and Congress mostly unconstrained to interpret our rights and their powers for themselves. That’s an important risk!
These are problems that are common to constitutional courts and the courts more generally in a separation of powers scheme. They cannot just write themselves a blank check to fund whatever they want. Certainly, our Constitution contemplates some involvement of the legislature in overseeing spending, and if the relationship between the legislature and the judiciary is strained, then the budget is a natural place for the legislature to try to “reign in” the judiciary.
They can also try to attack tenure. In Indonesia, the DPR recently dismissed one of the three justices they appointed, which many have perceived as based on the judge’s decisions. The legislature might say “we appointed such and such judge to take our side, the judge has failed to take our side, and therefore has failed at their job,” which is emphatically not how this is supposed to work. Just the perception that a dismissal was motivated to change case outcomes feels poisonous.
I do not want to suggest against reasonable governance reforms aimed at improving the court’s independence and credibility. People have observed what looks like strategic retirement planning on the Supreme Court that probably undermines the Court’s actual or perceived independence and impartiality. That might recommend re-considering Article III selection and tenure, although it would require a constitutional amendment. Some of our independent agencies (e.g., the Federal Reserve Board) that also demand independence from the executive have some kind of rotating succession based on lengthy but not indefinite tenure. Indonesia’s Constitutional Court justices serve maximum 15-year terms, becoming eligible for selection at age 55 and able to serve until 70, which is established not by the Constitution but by the Constitutional Court Law. Our own state courts certainly have a tremendous variety of selection and tenure schemes for their own state supreme courts.
There has also been a lot of controversy about the undeclared benefits that Supreme Court justices receive from friends or patrons. Most judges are accountable to a formal code of judicial conduct, and most states have judicial conduct commissions that are responsible for investigating credible complaints about judicial ethics violations from the trial courts up to the state supreme court. Their findings and recommendations are reviewed by the state supreme court, which generally has the power to remove judges. Nothing like that exists for the US Supreme Court.
Should we have something like that for the Supreme Court? Do we trust the Supreme Court to self-police the ethical compliance of its members? Do we trust the impeachment powers of Congress? Judge Jeremy Fogel, former Director of the Federal Judicial Center, suggests the US Supreme Court adopt a formal code of ethics with interpretation aided by an advisory panel. The Constitutional Court of Indonesia has an Honorary Council that addresses ethical conduct.
There’s also been controversy about how the Supreme uses its emergency docket with the justices trading barbs about when and how the court should grant a stay without writing an opinion. That’s a procedural issue that is probably worth looking at more closely. But these things all seem basically calculated to improve the court’s functioning, impartiality, and public confidence rather than destroy those things. There’s a real tension here though because what the legislature or court-outsiders propose as sound governance reforms, the judiciary is likely to be skeptical of as an attack on its independence. At the same time, proposals that would improve the reputation of the courts might not necessarily originate from inside the judiciary or allied organizations.
Other Activities
On Thursday, I was able to meet with the National Human Rights Commission (Komnas HAM), an independent agency with the responsibility to investigate, monitor, educate, and promote human rights in Indonesia. The Commission was originally created by an executive decree of Suharto in the face of international pressure over major abuses during the East Timor conflict. The agency’s powers were strengthened by a statutory mandate from the DPR in 1999.
The agency does not have criminal prosecutorial powers, relying on the government Attorney General to decide whether to prosecute based on the agency’s information. Komnas HAM is also the reporting body to international human rights organizations. Based on its compliance as a national human rights institutional with the Paris Principles adopted by the United Nations Human Rights Commission, Komnas HAM has a top level accreditation giving it a greater voice in international human rights.