Judicial Accountability
Judicial decisions are moving ever more authority over regulatory statutes away from agencies and to courts instead. One justification offered for this power transfer: agencies lack the accountability of courts. This Article takes up that claim, assessing the institutions’ relative capacities for accountability in their authoritative interpretations of regulatory statutes—agency regulations and court rulings. I take accountability to involve actors undertaking reasoned decisionmaking grounded in publicly recognized values and facts and justifying their decisions to others who can evaluate, influence, or override those judgments. Accountability thus involves a give and take: it gives an account of government reasoning to a range of publics in a way that takes their positions into account. Distributing power among institutions inevitably involves comparison, but I argue that comparing courts and agencies is especially warranted. Both are grounded in the Constitution, which introduces federal courts as new characters while presupposing agencies like old friends. Both effectuate statutes: we may use different terms for their work, but in a pragmatic sense, both courts and agencies determine how statutes will function on the ground. And both combine political appointment with tenure protection in their staffing. These similarities distinguish courts and agencies from congresses and presidents. One might argue that countermajoritarian courts don’t need to be ac-countable in the first place. But lacking an electoral connection doesn’t let them off the hook: any governing institution owes accountability to the governed. Like agencies, courts are accountable to the products of democratic decisions embodied in statutes. One might also argue that factors like reason-giving opinions, binding precedent, appellate review, and a commitment to the integrity of law suffice to make courts accountable. I show why each of these is salutary but limited: they might give courts good aspirations, but they do not create much capacity for accountability. So, how do the institutions stack up? I review their capacities along a range of axes: the timing of their encounters with statutes; the focus and scope of their inquiries; the range of information and input they accommodate; the opportunities and obligations they have to explain their con-duct to the public; and the epistemic implications of their staffing structures. In each arena, agencies have greater capacities for account-ability than courts—a fact particularly important to acknowledge now, when agency capacity is being rapidly undermined from inside the executive branch itself. Perhaps most crucially, agencies have ways to recognize and respond to the consequences of their regulations; courts, in contrast, lack ways to see, much less adjust, the externalities of their decisions, even though regulatory litigation has similarly broad effects on the public. A head-on comparison makes judicial denigration of agency account-ability sound less like analysis and more like projection. The question becomes how to make courts more accountable. Ideally, judges would match their exercise of power to their capacity for accountability. But the Supreme Court has been taking the opposite tack. I suggest that Congress create a Judicial Accountability Office, modeled on the Government Accountability Office, to track judicial decisions’ policy implications, evaluate their effects, and bring all of this to judges’ attention. Scholars can help, too, by avoiding a juricentric perspective on regulatory statutes and recognizing courts as just one of several statute- effectuating institutions. In short, agencies have greater accountability capacities than do courts. We should all act accordingly.
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