Independence of the Judiciary Judicial Independence Origins of Judicial Independence 1. Judicial independence is protected by the U.S. Constitution because the founders had first-hand experience being a persecuted minority, in courts they felt were unfairly controlled by the ruling party. 2. The Declaration of Independence, in criticizing King George III for making "judges dependent upon his will alone for the tenure of their offices and the amount and payment of their salaries," testifies to this fact. 3. This experience convinced the founders that Americans needed independent courts to be protected from unreasonable searches, star chamber trials, and other examples of overreaching government power. 4. To make the rule of law a reality, they knew that courts had to protect the rights of those promoting unpopular views, those representing minority viewpoints or factions, even those accused of serious crimes. Constitutional Protections 5. In the Constitution, the founders protected judges from political pressure by specifying that they hold their office "during good behavior." This means that their appointments are for life unless they are impeached. 6. To prevent Congress retaliating against judges, the Constitution specifies that their salaries cannot be diminished during their tenure. 7. The final constitutional safeguard is the intentional difficulty of the impeachment process—only on "impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." 8. Judicial independence was tested in the early 1800s when Justice Samuel Chase, an ardent and outspoken Federalist, came under fire from Jeffersonians alleging that Chase had engaged in judicial misconduct. After an impeachment trial, the Senate acquitted Chase, establishing the precedent that a federal judge may not be removed from office because his or her actions on the bench are unpopular. 9. In more than 200 years, only 13 attempts have been made to formally impeach federal judges, and only 7 judges have been convicted and removed from office—none because Congress disagreed with a judge's judicial philosophy or with a particular decision. 10. Legislatures have established processes for disciplining judges short of impeachment. For example, they can be reprimanded by the chief judge of the circuit and have all work removed from them (but they retain their salary). These forms of discipline are never to be imposed because the judge has made an unpopular decision. Benefits of Judicial Independence 11. It assures all Americans that cases will be decided on their merits. All litigants know that their case will be decided according to the law and the facts, not the vagaries of shifting political currents or the clamor of partisan politicians. Decisions are based on what is right and just, not what is popular at the moment. 12. Throughout American history, the independence of the judiciary has protected individual liberties and prevented a tyranny of the majority. Examples include extending voting rights, ending segregation, protecting average citizens from unwarranted government intrusion. 13. Emerging democracies look to our system of an independent judiciary as a model. They are all too familiar with "telephone justice," in which a judge adjourns court to wait for the call that tells him or her how to decide the case. Current Controversies 14. Despite occasional periods of tension, these protections have generally worked for more than two centuries to keep the judiciary free from partisan politics. Recently, some judges have come under fire by politicians and the general public because their decisions seem unfair or inconsistent with the public's sense of justice. Some critics have even suggested that judges should be impeached for unfavorable rulings. Discussion Questions Judges should decide cases based on their knowledge of the facts and the law. What would be the impact of allowing partisan politics to influence their decisions? What would be the impact of allowing public opinion to sway decisions? Are televised trials a problem? What are some examples of the positive effects of judicial independence for American society? Obviously, any judge's decision can be criticized, and debate over decisions and the general direction of courts can be healthy. When does criticism slide over into attacks on the courts that should concern us? Is it important to support the authority of a judge to make a decision, even when a particular decision does not agree with our sense of fairness or justice? Can we have judicial independence and judicial accountability at the same time? Does the right to appeal decisions to higher courts suffice to correct errors? How the Other Branches Can Influence the Judicial Branch 15. The president influences the courts by nominating judges to the federal bench. 16. Congress influences the judicial branch through legislation (i.e., if Congress believes the courts have misinterpreted a law, it can clarify the law; it can also pass laws altering the impact of decisions) laws specifying the jurisdiction of various courts laws specifying the number of judges overall and on particular courts (even the U.S. Supreme Court) appropriations to allocate money to the courts (judges' salaries can't be diminished, but funds for supporting staff, facilities, and supplies are appropriated each year) the exercise of the Senate's power to confirm the president's nominations to be judges. Discussion Questions Is this kind of long-term influence on the bench—president nominates, Senate approves or disapproves, public votes for president and Congress—a way of generally introducing accountability into the courts? Is this appropriate? Could these general powers be misused to inappropriately influence judges? (Examples might include President Roosevelt's "court-packing" plan of 1937, attempts to hold up approval of nominees until the next election, approving only those nominees who have passed a "litmus test" on how they might decide cases, attempts to use the power of the purse to punish courts as a whole, if not specific judges.) In Senate hearings on a president's nominees, which questions are appropriate, and which inappropriate? Is it proper to try to determine how a judge will decide a particular kind of case? To determine his/her general judicial philosophy? How should the Senate evaluate the qualifications of prospective judges? State Courts This discussion has focused on federal courts, but the politicizing of courts is a problem in many states. 17. Many state judges are elected, or, if appointed, have to be on the ballot periodically and receive at least a particular level of support to be retained in office. In recent years, well-funded campaigns in some states have removed judges who rendered unpopular decisions. The "facts" of these decisions are often oversimplified or even distorted during the campaign. Judges often are hampered by ethical rules in replying to charges. 18. Every state has a Code of Judicial Conduct and a commission charged with investigating and, if appropriate, punishing judges guilty of misconduct (but again, punishments are not inflicted just for unpopular decisions). State judges can sometimes be suspended, involuntarily retired, or removed from office. Discussion Questions Should judges be elected or appointed? If they are elected, will they feel indebted to the interest groups/political party which aided in their elections, and will that compromise their independence? Can we expect judges to render impartial decisions when lawyers who donated to their campaign funds are arguing cases in their courts? When judges have to participate in retention elections, the public is holding them accountable for their work. But is this the best way of improving the quality of the judiciary? Will the public be swayed by emotional appeals based on a few unpopular cases? Are the disciplinary commissions sufficient to punish judicial misconduct without impinging on judicial independence? Speech Ideas/Talking Points Home | Independence of the Judiciary Home Tips on Volunteering Home