MARCH 2000
Of Judges and Crocodiles: The Case for Judicial Independence
by Jeff Jacobson
The greatest scourge an angry Heaven ever inflicted upon an
ungrateful and a sinning people, was an ignorant, a corrupt, or a
dependent Judiciary. - John Marshall
A small, but vocal group of legislators and extremists has launched a
crusade against what they call "judicial activists." This term has
become a pejorative sword used by critics to attack judicial
decisions they dislike. The charge that a judge is an activist
usually follows the same pattern: the judge has imposed his or her
own value system on the facts while ignoring legal precedent or
constitutional jurisprudence. Conveniently failing to include
relevant factual or legal information that served as the rationale
for the judge's decision, these attackers paint a one-dimensional
picture to incite public anger. At the heart of these attacks are
political and ideological differences, and, like most epithets, are
shrouded in ulterior motives and ignorance.
While a majority of attacks come from legislators dissatisfied with
the checks judicial independence places on the will and whims of
their branches of government, some attacks are from those seeking
political power over judicial selection, some from disgruntled
persons who failed to attain judicial office, and some from various
extremist quarters. Fortunately, these attacks do not represent
mainstream legislators or state officials. Nevertheless, several
high-profile names, including Bork and Meese, recently endorsed a
fifteen-minute video that attacks judicial activism and independence.
In March 1997, then House Majority Whip Tom DeLay stated "[a]s part
of our conservative efforts against judicial activism, we are going
after judges." Shortly thereafter, DeLay announced the GOP would
pursue impeachment proceedings against a short list of activist
judges. Despite these histrionics, however, impeachment is not a form
of judicial review enumerated in Article III of the United States
Constitution. So, while these efforts may stand on hollow ground,
judges are not immune from the attacks.
If you think that judicial activism does not, or should not, have an
effect on judges, consider this story. When asked whether political
attacks on the judiciary affect the courts' decisions, retired
California Supreme Court Justice Otto Kaus once replied, "It is
difficult to ignore a crocodile in your bathtub when you're shaving
in the morning." Yet the dilemma is clear - can we expect a judge to
decide a controversial case after watching the crocodiles chew up one
of their colleagues? Judges are, nevertheless, bound by ethical
considerations in formulating their responses, if any, to these
attacks. Of course, it does nothing for public perception when the
judge fails to make his or her rulings clear and understandable in
the first place.
Supporting judicial independence does not equate, as some critics
have suggested, to quelling important First Amendment rights; nor
does it mean that judges should be immune from popular or academic
criticism. In fact, judicial criticism is a healthy and valuable part
of the democratic process. There is, however, a big difference
between critiquing and bashing.
Despite the heavy rhetoric, there is a healthy tension between
judicial independence and accountability. It is incumbent upon young
lawyers to educate citizens about judicial independence. Openly
discuss and debate these issues with your colleagues, and write
letters to your local newspaper supporting an independent judiciary.
Most of all, don't be a crocodile.
Ready Resources
For more on the subject of judicial independence, check out the
Summer 1999 issue of The Judges' Journal. To order a copy,
contact the ABA Service Center at 800/285-2221.
 
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