The least accountable branch

While one might still believe that the judicial power is “the least dangerous branch,”1 it is no longer accepted that the judiciary wields only limited power. The evidence is clear. The power of courts has increased worldwide at an unprecedented pace in the last few decades. Judges often clash with the executive and interfere with the agendas of parliaments. As a result, virtually all developed legal cultures now accept that judges are not like umpires whose job is just to call balls and strikes, to paraphrase the Chief Justice of the United States Supreme Court, John Roberts,2 and that they sometimes resort to judicial law-making. In addition to the normative issues about the role of judges in democratic society, there has always been a more mundane side of the coin. There is no doubt that judges are expected to be exemplary citizens. However, judges are human, with their own interests, own backgrounds, and own biases. They also have their weaknesses. They can be corrupt3 or may use public funds for personal gain.4 They may have an alcohol problem that affects their performance on the bench or be addicted to drugs.5 They may just be lazy or incompetent. They can take part in reprehensible conduct such as sadomasochistic practices6 or go astray in many other ways. Last but not least, several authors have pointed out that judges often collaborated with totalitarian or authoritarian regimes and supported these regimes in pursuing their agendas.7 These examples of judicial misconduct lead to the conclusion that judges must be held accountable. This is not a novel demand. States acknowledged this need a long time ago and allowed for the disciplining of judges, via either impeachment or a specific procedure before disciplinary courts. Many countries devised additional mechanisms such as retention reviews or complaint mechanisms. What is novel in scholarship on the judiciary is that recent literature has started to look beyond individual accountability mechanisms and conceptualizes judicial accountability questioning existing paradigms. Two further trends emerge from the literature. First, until recently, most writings on judicial accountability were authored by Anglo-American scholars and thus focused predominantly on the United States and the United Kingdom.8 Today, there is a growing literature on Africa, Asia, and continental Europe. Thus, civil law judiciaries and mixed jurisdictions are no longer exempted from the spotlight.9 Second, the entry of political scientists into the debate on courts and the rise of the field of “judicial studies” have changed the existing landscape. Political scientists are, in general, methodologically more advanced and less deferential towards the work of judges than lawyers and, what is more, they are not shy of testing the “sacred truths” about courts and judges empirically. The three books under review are fine examples of these trends. The first, Independence, Accountability, and the Judiciary edited by Guy Canivet, Mads Andenas, and Duncan Fairgrieve,10 is a bilingual collection of essays which addresses various facets of judicial independence and essays on the and but the also on Africa, and The and the of by with judges to the of from to in in of to of at judicial in countries in and the and from the of of a political of the three books under review has a and on a and the of a about the role of the judiciary the from to and in the of to the of In a normative from the that “the judiciary as the of in at all the that mechanisms as a of be to of the judicial role in the and that “judicial accountability for the be a This is the of which is developed in the of further that the role of the judiciary also has a to to the a in the of in the of accountability for and of a in accountability for the but also for the and the of In other that judges for the is for of the judiciary the of an authoritarian that the part of to the law of courts that the of accountability of judges for their in the of the judges have still to the to and are to is a on judiciaries in and Europe. is three the of the on the jurisdictions and The of to what the judicial in and the In to this three that judicial than have been the in judicial and that than and have been in the judicial of and and that of the have of on of judicial to all three the that there of judicial in and which the democratic and and the which the and that as from the of of Justice or the were in the and the by the to existing of power. In other these their from the to their own or at least to the of to other This to there and in the and the of the not lead to and that judicial of the of by the As the for of judicial in countries that and of the and on the one and and on the to the of a of and the to of judicial the that the of judicial more than the and In judicial accountability into and the of the on of that the of that in in legal and legal accountability been in before the and accountability and were more to the collection of essays Independence, Accountability, and the Judiciary under the of the of and by a As it is an edited there is no the the of of the of the and and and disciplinary of The of this is that it essays in as as in and thus one can more the of the Anglo-American and the legal This the to accountability mechanisms in these legal essays in on mechanisms of judges and on mechanisms of judicial This is as most writings on judicial accountability on judges are or can be held by and often the from the this collection of essays is by the of legal political scientists as as and three books under review into various of judicial However, of the authors to the what is by This in in that with that and of the is still and not that have such are more believe that in to the “judicial from a and to in judicial take a on First, judicial accountability as a or as a three that the of to the As the first, in on of accountability as a and accountability as a as a is as a normative as a of for of the of often use accountability in the of or a of for and or with these In this of accountability is the and accountability as or is one which is or accountability as a is a more accountability is as an or in which an can be held to by a that use accountability in the of on there are such at these can be accountability these mechanisms and what their The on their are the of mechanisms and the or these mechanisms may In this of accountability is the a which may or may not have an on the of and accountability are as and While one not a these with that be as they of issues and and and that more these of the As the of judicial accountability to three is the of judicial for must accountability mechanisms for the that is held and accountability only or and is that the to these are for the of accountability one a of mechanisms of judicial accountability that only the of judges not as a of judicial one a of mechanisms of judicial accountability that only mechanisms that mechanisms are mechanisms of judicial accountability must of judges is The of in the three books under review the of judicial a of judicial accountability that as “judicial accountability might to a in which the and in from for mechanisms that this In on the work of and of and as The of legal accountability is to the mechanisms of legal and of mechanisms of judicial the and in legal accountability to mechanisms that are the of such as and accountability the and disciplining of judges as as of the accountability of by and in by civil and the accountability to the by on the of their and this one can that to a of which mechanisms as of and mechanisms as of and mechanisms which as disciplinary and mechanisms which not as “the of to the to and that for judges and is an accountability which has to with accountability in of the still further and that of the judicial the of judicial and that in the of judicial to the of by the thus on and accountability as a and it in a of accountability and it as a the as for “judicial and and to what the judiciaries in and have with these In to only a few on out the of a that accountability a or other an to on the but it that not to a of accountability is a limited one as only with democratic accountability on the that individual or on of the and are from the public be to the and thus of democratic is the it for the and the that the judiciary have been held to for and of and thus also a In other accountability as a than a the of Independence, Accountability, and the Judiciary the to their and from judicial essays a with and but they not at the of “judicial and to the of judicial the Guy Canivet, and a job in “judicial The authors on mechanisms of judicial the judicial accountability as a However, they have one in of judicial accountability are as to also mechanisms that not In the the the books under review the of accountability and on accountability the of judicial what these books about other of “judicial In this on the three is to and for in that the to these three to a judges are held to and may lead to of judicial the of whose all authors accountability of the judiciary and individual accountability of that accountability in the of political may be individual as as what has been in this is accountability of the and individual and further and three of the judiciary a and individual judges on the of the to the to the is still from clear. As several essays in Canivet, Andenas, and there are of judges in as as in to In one may and judges in or law judges and in the United one must judges of the and and judges, judges, and judges of various This is for on judicial As “the of the judiciary not be with the judiciary often one the judiciary judges in the and law to all judges judges, judges, judges, of and or one to to the judiciary which in the with must be in from judicial accountability in other In many countries have a the and civil courts on the one and courts on the In many countries have which the of the and to specific that to the must in that the accountability of judges from that of judges, and the judiciary one must the of courts and courts and of the Supreme of the United are to few mechanisms of judicial and other judges as judges, judges or are for of and additional of The accountability to is a of judicial accountability as the to it is a of judicial this from one to about the that judges can be to the the of the also to the In judges can be held to by the of until the only to disciplinary by the of or by the and authors also judges as of of that the judiciary the in on mechanisms of judicial there is a for a to this that in and a role in judges to out that are with about the of the about the with which the courts but also with political the from the or the other legal In other and political work in of is in civil law which a of than their law The of three of judicial in and the of it for the judiciary to individual judges on always individual judges The of in and are further by the that they are of the of the and of the of the judicial and judicial They also on have a in the and of or may disciplinary judges of a for the that are in judiciaries in Europe. is a that the other books to this just that the by but not on the of or on they to the to the edited only about the role of in The accountability for the of in the edited are on this that judges can be held to for the and the of their and about and personal and While and more time they also that judges may be held to for their and in for the authors thus to that judges can be held to for as as for but they on the of these of this from the that many authors about the accountability of judges, the accountability of courts and the accountability of the judiciary at the it be to these three and in also the existing of the accountability of individual judges, and the of judges for their judicial which not only the of a but also and and the performance the of judges for their conduct on the bench for their the as as for their for their in public or for their by what and are or by what they be also which mechanisms at which at accountability and which at As in the the to the three is to and for to a judges are held to and may lead to of judicial judicial accountability in and the United and that in lead to of which on the for accountability that need to be into that “the judiciary has been as a and as a and “the to individual to most it is to a with a specific in the it be with a In the judiciary is to be more than a of individual In it is that most judicial or a of are by an of or by a a civil and that the only for the in such is to a the The of judicial thus that “the judiciary can be held in various but few and mechanisms are in to judges In of the judiciary in the of The is the for an individual specific are by individual judges, and it is to the work of and Thus, one may that the of judicial the accountability of individual judges, in the of personal by the these countries from the of the and civil law judges in the United the judiciary in the of their and have of than of judges which is for judges of the can be to the or other public is in the United Last but not least, the civil law of “the to a that has not to the United be other authors in the edited that the and judiciaries have been that the judiciary in the United is a However, the bilingual that there are judicial accountability in these and also a role for legal that it may to a for accountability of the of a for such accountability in in is a to in have and and that the to be for accountability of the judiciary be than a more a judicial and legal but of judicial in and that on This is in one of that the that the judicial and that of the of the and to judicial that can be in several ways. First, several of pointed out that the on the of and and thus the of judicial might have been by than by of Second, one may and that of and on the one and and on the the and one may also of the in the countries In this only the with to the of In on the of judicial in the and that to judicial countries that the legal is the for the and have the mechanisms of accountability that they have the power of and judicial in the that a and these three countries are in the judicial which from the look at the is and a judicial the the of Justice of However, is less the of individual courts. the role of in the judicial that in the have is not to what have a in what to as mechanisms of and They the and of judges and the of and the of disciplinary In they from the and with the of Justice on the and of in the have to their in and the in the of Justice of the work the the these three countries on the are not as as This to last the cultures of judicial of the of in the are out in which but most of their from the law of the Court, and What is thus not what the law about mechanisms of judicial accountability judicial but mechanisms of judicial accountability in judicial mechanisms of judicial accountability which in books may not be at or might be by than mechanisms of judicial accountability may emerge which are not by law at in devised mechanisms to or judges the of a legal for such In judges can be to the there is no or only a for such this the law in books and the law in is in and the and the of is that in all three books is the role of judicial accountability in the of to This is and judges to for their with authoritarian or totalitarian regimes has been a long In this is a on the need for accountability for the judicial role in and authoritarian is that judges not be exempted from the judiciary as the of at all in “the judiciary has been in the of by the under an be held to for judicial of on to that the judiciary the in and that of judges to their accountability for the are and the most is that to judicial accountability are in of the judicial in to the of of law and in and that on a judicial for all and is at In this part of the is at and a to the existing literature. However, there are three issues in that the to more First, it is out the as the only to with the the As there are other Judges can be to or under As a result, the a in these and, that a to judicial to be to other like for or of for for of However, not on and not to the Second, that the judiciary must be held to for and of as the most of the and that “the of or in the judiciary is a of the of the in the the as long as the of accountability of the judiciary for in the authoritarian or at While with that judges be held for and of not that there is a the is that judges were in of were not the that they and judges, the judiciary the of the in and thus not be in of in their judicial be more than their have not which of these is and which is What is more is that these of accountability which are a for the be more more accountability for and accountability for of and from the and have with the the of the from countries on the that and have of from that have a more and authoritarian and totalitarian While authoritarian regimes in and totalitarian regimes in and might several they also in many as a the the judiciary This is in to the regimes in and which their judicial and to judges in all of is more that and totalitarian in the judicial and that the of judges from and a of the for judicial the judges into and to may and that the problem of judges in other authoritarian that they were not political and not the authoritarian the problem of judges in and that they were political in the As a result, an to which to by in the in might have been the for judges in the it the of one on these it is that and judiciaries and This were in and Europe. most in that a in their judicial They and, with by the and at the time they to the The out but the as that the judiciaries in and were in the that in of the judges held their public the they been the and that the in and as it at least the Supreme and to be with the existing but about the the judiciary further As that the an the judiciaries in and from a long of for the of the part of the and of judges on the bench that the judicial the political to the of the judicial In other three The is that there a the judiciary the of the The is that this of the The is that judges from the the of the three about the are and a of the with the the most that out of judges on the bench in the judiciary and This that of judges from the on the and not as the it is that all judges the judiciary of First, the into only in and judges the judiciary from until to of the whose by no at that Second, many judges the judiciary in to their as as an an in the to the and of the of judges the judiciary on the of or in to the be most that the of such judges and most judges the judiciary the of for other that the judges from the their the judiciary is the the by the of Justice in a of the Supreme and and of the in and three are of or for the The at the Supreme is not the of the Supreme are not the judges of the Supreme out of are of the The at other courts are also a of the judges of the Supreme and of the in and an of judges of the of the to a of judges of the courts. In the of judges of courts is may thus of an As “the one in the of the the the of This has to with the it is a of the that judges are In the the judiciary the of the to what were and thus the of the of with the the judiciary not from the in and This is in with the the with the in the judicial The the of the judiciary and of the all judges to for their They to out a and their were As a result, only of judges were in The in other but the were still not further and several judges for of judicial under of the to in the of there were of of judges, of were to The thus that it is to individual judges to for a totalitarian and the of Independence, Accountability, and the Judiciary the judicial accountability and judicial independence in their that and on First, they that judicial independence is a to a and not an in Second, they that judicial accountability and independence be as that Canivet, Andenas, and on this in the to their that accountability mechanisms must independence of judges by the executive and the political on more than However, at the time it that normative of judicial independence that to the judiciary from public accountability for role in be and that “judicial independence not to as a public accountability of the judicial role for conduct an authoritarian and that is a judicial independence and These that all the authors have about the of judicial accountability and but they not out of these This is the of the As in the on the these on what is by the what are and what judicial accountability This that to the judicial independence and judicial must what by “judicial and “judicial and only can their and not In this is the to in this The only other is to these as judicial independence time has a the by the of judicial independence with more specific that are more not judicial independence is by most and it in as the to a by an Thus, this problem not in the As with judicial independence is believe that most in and the and of judicial accountability are also to judicial First, on judicial independence is judicial independence as a or as a to on judicial one may either on expected of judges as a or on judges and other as a to mechanisms of judicial independence to what what as a of independence and what and of judicial independence must the judicial accountability in of whose independence from and independence from three books under review a of for and of have several of there has been no on the role of and in in judges to The of John Chief of the of for the that has been on the of Chief or their is as as it in In more work is on the of judicial accountability and on and judicial However, there are more to First, most judicial accountability in the three books under as as in the of the literature on this are not supported by not many disciplinary are in a for what they are many in what are for a of and These a about judges are held to in which other to the existing and the about a may be the that to the law several can disciplinary judges the of the for the or the of but only one or of use this power. the disciplining of judges, one can retention reviews or by the of the judicial In countries which the of judges to on the of or one may such the are, or to what they from one to and to what other mechanisms of judicial accountability such as to a to the of or or the judiciary might be more as only what the for these are, but still can a often these mechanisms are and which judges from the three books under only a of and from the and and In with judges and This is However, a look at the one can several is that various of law are which are and a of individual mechanisms of judicial accountability the of the only on the judiciary and, are political by is that most of the on from and judges and on the by various judicial and the of and the This is these of judges have their own they to the for the Judiciary in and the role of As a result, one not take by these judicial for and must with and other is that virtually no in or but on in in the of the about courts and judges in these three countries and sometimes to the of judicial authors in of judicial accountability to it as a and thus the other of judicial accountability to the of judges to and, for a not of judicial accountability As a result, has been to accountability These may take many and can be and only of judicial accountability judicial of judicial and judicial accountability in the no one what judges are no one can to the about the of individual judges of of or are not a in the long may in the of can This accountability can be further by for a the a disciplinary to be only one from the a a it is for a to misconduct under the for a and is is judicial this the judges that they are held to but all judges that they are and that they not In other there are mechanisms of judicial accountability in but there is no by are with and the are not is a of this The is of judicial this or that for judges to in that can be or than in that or The most is a into in to a for on a to the into a for one and and of by accountability the of and as and In it can take many is the disciplinary of judges for to other judges, they not the disciplinary might from disciplinary judges or a on the their conduct to a the can also and of in to judges and the or use to their and this to judges with political In other and can be This review has with the three recent books to the long of judges to of these books has and but all of are to the scholarship on courts and What these books is that judges power in and that “the least dangerous for the judiciary is at this that is all that is to into the legal and political for on the of the “the least dangerous all three books also the that the judiciary “the least the of is that with power The the power of judges and their accountability in these all three books under review are and and