capitalism

266 Judiciary
have argued that the judiciary should enforce socially created
mores. Friedrich Hayek’s view of the judicial role was
a confused attempt to strike a middle course between these
extremes. Judges should “maintain and improve” the system
of social rules that have evolved through practice, he argued,
and to “cope with new problems by the application of ‘principles’
[that they] distill from the ratio decidendi of earlier
decisions, and so to develop these inchoate rules ...that...
will produce the desired effect in new situations.” Yet he
also acknowledged that on occasion judges would have to
“improve the existing system by laying down new rules.”
Hayek’s attempt to accommodate the acknowledged need
for the “deliberate efforts of judges . . . [to] improve the
existing system by laying down rules” into his broader critique
of “rationalist constructivism” and his belief that
judges ought to “maintain and improve a going order” and
to “enforce expectations” is among the weakest parts of his
political philosophy.
Montesquieu’s pioneering work on the separation of powers,
The Spirit of the Laws, held it to be essential that the judiciary
be separated from the executive and legislative
branches because an independent judiciary is such a powerful
check against unilateral power. Indeed, during the 17th
century, the Stuart monarchs of England diminished the independence
of the judiciary by choosing judges sympathetic to
the crown, discharging those who were not, and creating
independent legal systems staffed by royal cronies. The most
infamous of these courts was the secretive one known as Star
Chamber, after the colorfully painted ceiling in the room
where it met. Star Chamber dragged political and religious
dissenters before it and would cut off their ears, among other
mutilations, as punishment. Its abolition in 1641 was a milestone
in the development of the common law.
The U.S. Constitution requires the separation of powers
and bolsters judicial independence by providing judges
with indefinite tenure—now an almost unique feature
among written constitutions. This independence has led
many to criticize the judiciary as an undemocratic threat to
popular government. However, this critique ignores two
fundamental principles: first, that the judiciary, like the
other branches, possesses only the powers delegated to it
by the people in their Constitution, and second, that the
judiciary is empowered to defend the Constitution—which
represents the true will of the people—against the
encroachments of legislatures that at most represent only a
temporary consensus among particular legislators. Thus, as
Hamilton wrote in Federalist no. 78, the judiciary is not
nullifying, but affirming the will of the people, when it
declares a law void for contradicting the Constitution. It
was for this reason that Justice Stephen Field described the
Supreme Court as “the most democratic” of the branches of
government: because the people of the United States,
through their Constitution, have entrusted that branch with
the duty to ensure that their legislators act only within the
boundaries of the Constitution. In addition, the legislative
and executive have powerful checks against the judiciary
inasmuch as they are empowered to limit the courts’ jurisdiction
and to refuse enforcement to their decisions. These
factors led the authors of the Federalist to call the judiciary
the “weakest” branch of government, and such checks have
been used frequently, as when Congress barred courts from
reviewing challenges to military tribunals in the War on
Terror, or when the Jackson administration, by refusing to
enforce the Court’s rulings in favor of the Cherokee tribe,
precipitated the Trail of Tears. Critics of so-called judicial
activism routinely ignore these factors and even argue that
legislatures should be free to override court decisions or
that courts should be stripped of their power to declare laws
unconstitutional. This, however, would lead naturally to the
legislature being the sole judge of its own powers. Thus, the
critique of “judicial activism” is often an attack on constitutional
government.
Despite the constitutional requirement of the separation
of powers, many administrative agencies, although officially
regarded as parts of the executive or legislative
branches, frequently exercise judicial powers—by interpreting
regulations and holding hearings—as well as executive
power—by enforcing regulations—and legislative
power—by drafting and revising rules. This blending of
powers has been blessed by the Supreme Court, however,
on the grounds that if some form of appeal to the courts
remains available, such proceedings are compatible with
the Constitution.
Although judicial powers are exercised by the judicial
branch of government, there are many private market alternatives
for dispute resolution. This is a throwback to the origins
of the judiciary, which is rooted in the Law Merchant
of the European maritime states of the Renaissance. This
privately operated system provided a comprehensive means
for resolving disputes and rendering judgments with regard
to commercial law, and it was particularly useful for
disputes crossing jurisdictional boundaries. Today, dispute
resolution by such private organizations as the National
Arbitration Forum or the American Arbitration Association
gives consumers a choice that tends to be faster, cheaper,
confidential, and conducted in layman’s language.
Arbitration also allows consumers to choose the operating
rules for dispute resolution in a way that government courts
do not. The Federal Arbitration Act of 1925 authorizes
courts to enforce the decisions of private arbitrators, and
federal courts have held that arbitration is a preferred
method of resolving contractual disputes. The advent of the
Internet also has opened a new field for private arbitration of
disputes; organizations such as Virtual Magistrate and
Square Trade have created for-profit, online arbitration systems
for settling disputes between Internet users. As one
commentator has noted, these systems tend not only to be
faster and cheaper than government courts, and to avoid