Institutions
Independent Courts and Accountable Agencies
Courts that decide by law and agencies that answer to the public are what stand between a citizen and arbitrary power. Both have earned criticism, and both are worth defending.
Most Americans never appear before a federal judge or petition a regulatory agency, and yet these institutions shape daily life more than almost anything else in government. Courts decide whether a contract will be honored, whether a search was legal, whether a law means what it says. Agencies decide whether the medicine is safe, whether the bridge will be inspected, whether the bank can take a particular risk with your savings. When these institutions work, they are invisible. When they fail, the cost lands on people with no other recourse.
Independence and accountability are in tension, and every generation of Americans has argued about the balance. A court that bends to public pressure cannot protect an unpopular defendant; a court that answers to no one can drift from the law it is meant to apply. An agency insulated from politics can act on expertise rather than favor; an agency that never answers to voters can become a government unto itself, or be captured by the industry it regulates.
Concerns from every direction
Americans on different sides tend to notice different failures, and all of them are real. Some worry that agencies write rules with the force of law that no elected official ever voted on, and that citizens and small businesses face regulatory burdens they cannot challenge. Others worry that agencies are too often staffed and steered by the industries they oversee, so that the public interest loses to the best-funded lobby. Some worry that courts have become an unelected branch making policy; others worry that courts are being pressured, packed, or ignored to serve political ends. Each of these concerns points toward the same principle: institutions must be powerful enough to do their jobs and bound tightly enough that they cannot do anyone's bidding.
The stakes for self-government
A country cannot leave everything to elections. Between elections, citizens need courts that will hear them and agencies that will answer them, and both must operate under rules that do not change with the party in power. Common Ground does not take positions on particular rulings or regulations. We ask members to defend the institutions as institutions: to accept adverse rulings as legitimate, to hold agencies to public standards regardless of who runs them, and to resist the temptation to weaken an institution simply because it is currently in the wrong hands.
Civic principles
How we approach the topic, before any policy.
Institutions outlast the people in them
A court or agency will be run by your opponents eventually. We evaluate every proposal to expand or restrain institutional power by asking whether we would accept it under leadership we distrust.
Expertise serves the public; it does not replace it
Technical judgment is essential to safe medicine, sound infrastructure, and stable markets. But experts are not sovereign. Final accountability must trace back to people the public can vote out.
Adverse rulings are still rulings
Losing in court is part of living under law. We criticize decisions we believe are wrong through argument, appeal, and lawful change, and we comply with them in the meantime.
Where agreement stands
- Broad agreement
Judges should decide cases by law, not by who the parties are
Americans across parties want judges who rule on the merits without regard to the litigants' politics, wealth, or connections. Disagreement over particular decisions rarely extends to this principle.
- Broad agreement
Agencies should be transparent about how they make decisions
There is wide support for requiring agencies to explain their rules, publish their reasoning, and allow the public to comment. Both those who want less regulation and those who want more tend to favor openness.
- Contested
How much rulemaking authority agencies should have
Some Americans believe elected legislators should make major policy decisions directly and that agency rulemaking has drifted into lawmaking without democratic sanction. Others believe modern problems require specialized, adaptive judgment that legislatures cannot supply, and that constraining agencies mainly benefits the industries they regulate. Both sides invoke accountability; they disagree about whether the greater danger is unaccountable expertise or unaccountable industry influence.
- Emerging agreement
Ethics standards for judges should be clear and enforceable
Interest in explicit codes of conduct, recusal standards, and disclosure requirements for judges at every level has grown across the political spectrum, partly because each side has had reason to question the other's favored judges. The mechanism of enforcement remains debated.
- Emerging agreement
Whistleblowers and inspectors general need real protection
Support for strong legal protections for government employees who report waste, fraud, or abuse through proper channels, and for well-resourced independent inspectors general inside federal agencies, spans both parties, especially when the officials being scrutinized belong to the other side's administration.
- Contested
Term limits or age limits for federal judges
Some Americans support fixed terms or a mandatory retirement age for federal judges, including on the Supreme Court, arguing that lifetime tenure has produced high-stakes vacancies that distort politics and judges who serve decades past their most active years. Others believe lifetime tenure is essential to insulating judges from political pressure and that any change would only politicize the bench further by making every seat come open on a predictable schedule. Both sides want an independent judiciary; they disagree about which structure protects that independence.
Open questions
We state the tension honestly and do not pretend to resolve it.
Should judges be selected by election, appointment, or some mix?
Elected judges answer to voters but may answer also to donors and public passion. Appointed judges are insulated but chosen through a political process that voters see only at a distance. States have tried every variation, and none is without cost.
What should happen when a court and an elected branch disagree about the limits of each other's power?
Constitutional structure assumes the branches will check one another, but it does not say who wins a standoff. Americans disagree about whether the final word should rest with courts, legislatures, or the voters who can change both.
How can an agency be shielded from industry capture without being shielded from public accountability?
Insulating agencies from lobbyists often also insulates them from voters. Exposing them to political direction opens the door to favoritism. Designing an institution that is answerable to the public but not for sale is harder than either side's slogans suggest.
Should a single federal district judge be able to block a federal policy nationwide?
Nationwide injunctions let one judge halt a law or rule everywhere while a case proceeds, which critics call forum shopping and defenders call a necessary check on unlawful action affecting people outside the courtroom. Both major parties have praised and condemned the practice depending on who held the White House.
How should the public assess claims that an agency has been captured by the industry it regulates?
Revolving doors between regulators and the companies they oversee are common and not always improper; expertise often comes from industry experience. Distinguishing genuine capture from ordinary expertise, and knowing when to worry about it, is harder than the accusation makes it sound.