Who Judges the Judges

Abstract

In the routine performance of their judicial functions, judges are judged, in the loose sense of the word, by the litigants and by the general public, the latter usually informed through the reports of journalists. These two groups represent the ultimate consumers of the judicial product: the litigants directly as parties to the decision, the public indirectly as parties affected by the precedent established. On the judgment of these two groups over time rests the public reputation of the individual judge; on the cumulative judgment of all the judges rests the public reputation of the judicial branch of government. In addition, judges are judged (still in the loose sense of the word) by the legal profession: lawyers who practice in their courts and other judges who rely on the precedents established by their decisions. Judges on appellate courts are also judged by law professors and students who study the written opinions that accompany judicial decisions.2 On these judgments rest the professional reputation of the judges. In the case of a judicial decision appealed to a higher court, the deciding judge is judged, in a stricter sense, by appellate judges, who have the power to affirm or reverse the decision; occasionally the appellate judges comment on the work of the lower court, expressing praise or blame.3 Decisions of a final court of appeal cannot be formally reviewed by any other court. As Justice Robert H. Jackson observed of the judges of the U.S. Supreme Court, “We are not final because we are infallible, but we are infallible only because we are fi-