Who's Afraid of "Telephone Justice"?

Telephone justice was the Soviet practice requiring judges to ring up their Communist Party bosses to determine how to decide a case. Wow! Sure makes legal research easier and more straightforward. Of course, telephone justice transmogrifies judges into appendages of the Communist Party, and by doing so gives law and justice the boot. Just try to imagine such a practice in the United States! Suppose Chief Justice Roberts called up Mike Duncan, the present chair of the RNC, to find out whether late term abortions were constitutional. Screech! To the American constitutionalist's ear that bell won't ring. The very statement of such a hypothetical is difficult to take seriously, perhaps even to render intelligible. What is "judicial" about a practice of appealing to political hacks to resolve conflicts, constitutional or otherwise? Such a doctrine doesn't compute. Telephone justice might involve a telephone but it cannot involve justice or even law. Telephone justice flies in the face of judicial independence and therefore subverts the rule of law. And that settles the matter.

Telephone justice serves as paradigmatic of trashing judicial independence and establishing the non-rule of law. It's hard to imagine a contrary view. That said, we're left with one vexatious problem: Once we leave this paradigm, and perhaps other less extreme examples, American constitutionalists often start to wield heavy swords, striking down all sorts of practices which have nothing in common with telephone justice. For example, cries of violating judicial independence and subverting the rule of law are sometimes directed at the practice of electing justices or of instituting a legislative override. Whatever the virtues or vices of these practices, surely they cannot be viewed as inconsistent with judicial independence or the rule of law. Or, perhaps, better stated, one needs to explicate in analytic detail the conceptions of "judicial independence" and "the rule of law" that preclude electing justices or instituting legislative overrides. In short, our indignation at the very idea of "telephone justice" should not spill over and taint our exploration of prospective constitutional practices that might render our republican democracy more democratic than it is now just because we rightly condemn "telephone justice" for the sham that it is. We need to embark on a more circumspect examination of judicial independence and its slighted twin, judicial accountability, to see whether the specter of telephone justice should render us unable to treat these necessary virtues with the equal respect and admiration they both deserve.