Reflections upon judicial independence as we approach the bicentennial of Marbury v. Madison: safeguarding the constitution's "crown jewel".

• Author: Rosen, Gerald E.

1. INTRODUCTION

   By 1787, the Revolution had been won and a new, independent nation born. (1) But, the new nation had yet to clearly define a governmental structure to maintain the principles over which the Revolution was fought. Thus, when the fifty-five delegates to the Constitutional Convention assembled in Philadelphia in May of 1787, (2) they had the daunting task of fashioning a government that would protect the ideals that sparked the birth of the United States: freedom and the rule of law.

   After five months of debate, controversy, and compromise, the Framers emerged with a document that would prove the most enduring constitution ever drafted. Shaped as much by the failure of the Articles of Confederation as the experience of European governments, (3) the United States Constitution creates a network of institutions to protect people against intrusive government and the misappropriation of power by government leaders. One such institution unique to the American Constitution was the establishment of a judiciary independent of both the legislative and the executive branches. Chief Justice William Rehnquist has called the judicial independence enjoyed by federal judges a "crown jewel" of our Constitutional design. (4)

   The independence of our federal judiciary unites two distinct principles. The first, provided by Article III, protects federal judges against diminished salary and provides for life tenure "during good behaviour." (5) In affording federal judges these protections, the Founders provided judges with decisional independence. The second principle is the vesting of judicial power in a Supreme Court and lower courts separate from the other branches of government. (6) By making the third branch an effective check on the legislative and executive branches, the Constitution provides the judiciary with institutional independence. The Framers clearly understood the importance of separating the judicial branch from the political branches of government.

   While the Constitution laid the political foundation of judicial independence, it remained for the Supreme Court itself to fully establish the role of the independent judiciary as a co-equal branch of the government. The American Revolution was fought for the freedom to live under a government chosen by the people, while the Constitution--the bedrock of our polity--defines the limits on government. In Marbury v. Madison, (7) Chief Justice John Marshall harmonized these two notions of self-government under a constitutional rule of law. Thus, the Constitution--as our fundamental law--is interpreted by an independent judiciary acting in relatively rare circumstances to limit the power of the executive and legislative branches.

   The importance of Marbury cannot be underestimated, as it is the power of review that gives the courts the final authority to say what the law is. But, without complete independence, the authority for the power of review would be a meaningless illusion. Thus, by shielding the courts from specific retaliation when they exercise the power of review, the institutional and decisional independence provided by the Constitution preserves the judiciary's authority to exercise the power of review "without fear or favor." (8) However these two linchpins of the third branch--independence and judicial review--were not achieved without obstacle, and even after Marbury, they have been challenged.

2. JUDICIAL INDEPENDENCE IN THE RATIFICATION DEBATE

   Judicial independence was a point of great contention in the ratification debate over the Constitution. (9) In the aftermath of a revolution fought over the right to establish a "government of the people and by the people," opponents of Article III's ratification feared that it consolidated too much power in an independent judiciary, an "undemocratic" body removed from the people. (10) The Federalists responded by highlighting the relative weakness of the judiciary compared to the democratic branches. In Federalist No. 78, Alexander Hamilton commented:

   The judiciary ... has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. (11) The Federalists argued that the legislature--the government institution subject to the fewest constraints--was more dangerous to the people's freedom than the judiciary. (12) They reasoned that an independent judiciary, confined by law, together with an energetic executive, was necessary to balance the excessive power of the legislature. (13)

   The anti-Federalists did not necessarily oppose the Constitutional safeguards that protected decisional independence. Thomas Jefferson, an anti-Federalist and noted critic of the judiciary, nevertheless understood the importance of influence-free judges. The Declaration of Independence, principally authored by Jefferson, complains of colonial judges made subject to the King's will alone. (14) The anti-Federalists' main opposition to the Constitution's ratification was that it afforded no means to balance judicial independence with judicial accountability. (15) Under the pen name "Brutus," an anti-Federalist wrote, "If ... the legislature pass any laws inconsistent with the sense the judges put upon the constitution, they will declare it void; and therefore in this respect their power is superior to that of the legislature." (16)

   Jefferson, too, feared that the independence of judges would lead to the gradual ascendance of the federal judiciary over the other branches and the states. In 1821 in a letter to Charles Hammond, he expressed his fears of a slow build-up of federal power:

   It has long been my opinion, and I have not shrunk from its Expression ... that the germ of dissolution of our federal government is in the constitution of the Federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow), working like gravity day and night, gaining a little to-day and a little to-morrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all shall be consolidated into one. (17) The ratification debate highlights the issues underlying the contentious nature of the establishment of an independent judiciary. The fear of judicial oligarchy articulated by Brutus and Jefferson two hundred years ago is still echoed today by talk show hosts, politicians, and political pundits. In fact, they make a valid and important point. While judicial independence allows judges the freedom to interpret and follow the law, it also provides them protection if they do not.

3. MARBURY v. MADISON: THE JUDICIARY GAINS CO-EQUAL STATUS

   Many opponents of Article III believed their worst fears of judicial supremacy were realized in Marbury v. Madison. (18) William Marbury, the justice of the peace in the District of Columbia, asked the Supreme Court to issue a mandamus to Secretary of State Madison, who, according to President Jefferson's request, had refused to deliver a commission. (19) Chief Justice Marshall wrote the Court's unanimous opinion, in which he refused to order that the commission be delivered, reasoning that the Court lacked the jurisdiction to do so (despite a 1789 congressional act that seemingly authorized the Supreme Court to take such action). (20) Marshall held that the congressional act was in violation of the Constitution, based on the power of judicial review, which he believed to be a necessary component of limited government:

   The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time, be passed by those intended to be restrained? (21) Marshall argued that there would be no reason for the Constitution to articulate any limits upon the legislature, if the legislature could exceed those limits at its pleasure. (22) Thus, the role of the judiciary is to ensure that the actions of the other branches fall within these constitutional limits. Central to this role is the judiciary's ability to exercise the power of review by striking down government actions that traverse the Constitution.

   President Jefferson did not accept the Chief Justice's opinion as final, (23) and the Court did not invalidate an other act of Congress until Dred Scott, (24) fifty years later. Nevertheless, Marbury's doctrine of judicial review has become imbedded in American jurisprudence. (25) The independence of the judiciary, necessary to effectuate power of review, however, has not gone unchallenged. In fact, the Court's exercise of the power of review has at times sparked retaliatory measures by the policy branches. In 1832, for example, during Andrew Jackson's presidency, some states openly defied Supreme Court decisions, and the president questioned whether he had the power to enforce those decisions. (26) He disagreed with the Court's decision in a dispute between the Cherokee Tribe and the State of Georgia (27) and reputedly commented, "John Marshall has made his decree, now let him enforce it." (28) President Roosevelt was similarly annoyed with the Supreme Court's rejection of his New Deal reforms (29) and proposed augmenting the number of sitting justices in an effort to change the ideological balance of that bench. (30)

4. JUDICIAL INDEPENDENCE TODAY

   The federal judiciary of today is not the judiciary of Hamilton's Federalist No. 78. While the federal judiciary continues to depend on the legislature for funding and on the executive to enforce its decisions, as Supreme Court Justice Clarence Thomas has said, "What is truly surprising about today's judiciary is how...