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Independence of the Judiciary
Background Article
Independent Courts: How Important Are They?
By Ed O'Brien, Executive Director, Street Law, Inc.
Note: This article has also been adapted for use as a classroom lesson for grades 7-12.
About 15 years ago, judges in the Soviet Union often used a concept called "telephone justice" to render their decisions: They would call the Communist Party leadership and ask, "What does the party want in this case?" and then rule accordingly. Not surprisingly, judges, courts and the law in general were not held in very high regard in the Soviet Union.
Independent courts are an integral part of the U.S. system of government. Under the Constitution's system of checks and balances, one role of the courts is to restrain the legislative and the executive branches by ruling actions void when they violate the Constitution. This power was first exercised in 1803 in the case of Marbury v. Madison, when Justice John Marshall ruled that a federal law was unconstitutional. Many years later, Marshall said, "The Greatest Scorge an angry Heaven ever inflicted upon an ungrateful and a sinning people, was an ignorant, a corrupt, or a dependent judiciary."1
Judicial independence in a democracy also means acting impartially, making just decisions and being perceived to act without the undue influence of outside forces. Professor John Ferejohn of Stanford University maintains that an independent judiciary upholds three critical values for a democratic society: (1) the rule of law: ensuring that every individual, of whatever social standing, is subject to the same protections and restrictions under the law and that powerful people do not manipulate legal proceedings; (2) Constitutional integrity: preserving the ability of the Constitution to protect our freedoms and order our society by ensuring that one societal institution has the power to overturn laws that violate the Constitution; and (3) enforcement of the law: guaranteeing that legitimate laws will be enforced in daily life, not simply stated as theory.2
An independent judiciary in the United States generally protects these principles; a fact not to be taken lightly. However, the independence of courts is not a reality worldwide. In the not too distant past, Russian presidents often declared rulings by the highest court null and void because they did not like them. In South Africa, until its new Constitution took effect in 1994, the all-white, undemocratic Parliament had final say on the constitutionality of laws, not the courts. In Latin America, people often criticize their governments for having laws on their books that are not enforced by either the courts or the police.
The History of an Independent Judiciary in the U.S.
Like much of our system of government, we inherited our system of judicial independence from Great Britain. In the 1600s citizens spoke out against the dependence of judges on the monarchy, which had extensive legislative and executive powers. The king or queen could assign judges to the bench and then remove them summarily if they did not represent the sovereign's interests. These complaints resulted in the Bill of Rights of 1689, which provided English judges a measure of constitutional protection, including the promise that they could serve during "good behavior." This is a term later included in Article III in our own Constitution, which protects judges from being removed at the political whims of executive or legislative officeholders.3
Though judges in Britain developed some independence, their counterparts in the American colonies remained essentially Crown officers, whose duty was to enforce British policies and law, leading to frequent conflicts with the colonists. This led Americans to embrace the idea of the jury trial, which took some power away from these not-so-independent judges. When independence came, the framers of the Constitution worked to create a third branch of government that was relatively independent of the executive and the legislative branches. All this was based on French philosopher Montesquieu's doctrines of separation of powers.4
The U.S. Constitution provides in Article III, Section 1 that "The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." The section goes on to say, "The Judges, both of the supreme and inferior Courts, shall hold Officer during good Behaviour." Section 1 also states, "The Judges... shall at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."
These provisions ensure lifetime appointments for federal judges, making it difficult to remove them except through cumbersome impeachment proceedings. They also prevent Congress from lowering their salaries during their terms of office. To most commentators, these are the foundations that make judicial independence in the U.S. possible. But many of these same critics believe that this concept, though Constitutionally protected, is fragile and under attack.
The Affects of Public Pressure on the Judiciary
In 1996 the American Bar Association (ABA), moved by what it saw as "an intense cycle of judicial scrutiny and criticism … forming over the last decade," appointed the ABA Commission on Separation of Powers, which issued a report in 1997. Exemplifying this criticism was the outcry prompted by a number of decisions by judges such as New York federal Judge Harold Baer.5
In 1996 Judge Baer ruled on a criminal defendant's motion to suppress evidence in a drug case. Several men had dropped duffel bags into the defendant's car and fled upon seeing the police. The police stopped the defendant's car and found drugs in the bags. Judge Baer ruled that this search violated the Fourth Amendment's prohibition against unreasonable searches. The judge said that in this neighborhood, people reasonably could fear police, and the act of running away should not automatically give the police the right to search the car. The prosecution and many other people were outraged by this decision. Senate Majority Leader Dole and Speaker of the House Newt Gingrich threatened impeachment hearings against Judge Baer, and President Clinton suggested that he might request Baer's resignation (note: he never did).6
Though this case and others like it create a great deal of publicity, for the most part they do not result in impeachment of the judges involved; however, in the eyes of many, including the ABA, these incidents of strong public reaction result in infringement of the independence of the judiciary and possibly put pressure on judges to rule in a different way in the future.
These concerns are not universal. Other commentators have countered that lifetime appointments protect federal judges, and that it is very difficult to actually impeach a judge in the U.S. Senate, because impeachment requires a 2/3 vote for a conviction. (The difficulty of garnering a 2/3 majority was exemplified in recent times by the Clinton impeachment trial in the Senate).
Making vs. Interpreting Law
Another debate centers around "judicial activism," a term applied by some when they see "judges becoming legislators" and getting involved in "making law," rather than just enforcing and interpreting it. These detractors complain that for the last 40 years the courts have told police what to do when they arrest defendants, made parents send their children to certain schools, "discovered" a right to abortion and even decided the results of a Presidential election. They see these actions as over-reaching and inappropriate.
Many legal experts, however, believe courts need to step in to protect minorities and preserve the rights protected in the Constitution and the Bill of Rights. They point to decisions that voided racial discrimination, established privacy rights, and protected free speech as examples in which crucial freedoms, neglected by other branches of government, were upheld by the judicial branch. This school of legal opinion says that the country might have had to wait for years before lawmakers acted in such areas. Stating the position of this side of the debate is Professor Erwin Chemerinsky, who has said, "I am unsure of what exactly judicial activism means … My sense is that it is a label that conservatives use to attack the decisions that they do not like." He points out that in recent years most of the "activism" in the judicial arena has been by conservative justices who now form a majority on the U.S. Supreme Court.7
While criticism on the activism issue, along with many others, is still alive, few if any federal judges have actually been impeached. The real danger of such debates, says the ABA, is not the actual removal of individual judges but that judges feel restrained from ruling in ways that go against the majority for fear of being put though impeachment proceedings.
Article Continues>>
1 American Bar Association. An Independent Judiciary: Report of the ABA Commission on Separation of Powers and Judicial Independence from ABA web site. Overview.
2 Ferejohn, John. "Dynamics of Judicial Independence: Independent Judges, Dependent Judiciary." Paper delivered at University of Southern California Symposium on Judicial Independence and Accounting Systems Nov. 20-21, 1998. p. 11.
3 Ferejohn. p. 14.
4 Ferejohn. p. 14.
5 American Bar Association. Section 4 (1): "Federal Judicial Independence: A Review of Recent Issues and Arguments, Decisional Independence Issues." p. 1 of 8.
6 American Bar Association. Section 4 (1): "Federal Judicial Independence: A Review of Recent Issues and Arguments, Decisional Independence Issues." p. 1 of 8.
7 American Bar Association. Section 4 (1): "Federal Judicial Independence: A Review of Recent Issues and Arguments, Decisional Independence Issues." p. 7 of 8.
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