The Least Accountable Branch?

Under what conditions should judges be held accountable to their constituents for the decisions they make? In framing our question as we have we are immediately tipping our hand on two crucial issues: (1) we assume that judges have constituents, which is, of course, technically true of more than 90% of American judges, and (2) we imply that under at least some conditions, accountability is not only appropriate but required by most theories of liberal democracy. Our arguments run as follows: • In many areas of law, including sentencing, judges are given by statute an enormous amount of discretion. • When law authorizes discretion, law no longer indicates what specific decision should be made. Any decision that falls within the range of discretion authorized by law must be judged to be compatible with the rule-of-law. • Judges may base their discretionary decisions on many factors, including expertise, their own ideological predilections, their own self-interest, the interests of the workgroup of which they are a member, and the preferences and interests of their constituents, to name just a few salient factors.