The ethical foundations of American judicial independence.

• Author: Johnson, Vincent R.

Our Constitution ... [and] Bill of Rights ... [contain] protections of individual rights ... [I]mportant as these guarantees are, by themselves they were not a uniquely American contribution to the art of government. Long before them England had produced the Magna Carta, the Petition of Right, and the Declaration of Rights. Simultaneously with them in France there was the Declaration of the Rights of Man.

The uniquely American contribution consisted of the idea of placing these guarantees in a written constitution which would be enforceable by an independent judiciary. This idea that the rights guaranteed by the Constitution would be enforced by judges who were independent of the executive was something found in no other system of government at that time. It was a unique American contribution to the theory and practice of government.

--Chief Justice William H. Rehnquist (1)

1. STRUCTURAL FOUNDATIONS OF JUDICIAL INDEPENDENCE

   When one thinks of the independence (2) of the American judiciary, the mind focuses first on federal courts. There have been many pivotal cases in which independent judges stood against the tides of public opinion or the power of the legislative and executive branches. The role of the federal courts in ending segregation, (3) holding presidents accountable, (4) according women equal treatment, (5) and protecting the rights of the accused (6) come to mind.

   Most lawyers and many citizens could recall the federal constitutional bases for judicial independence. Article III mandates that positions be filled through appointment by the President and confirmation by the Senate. (7) That formidable selection process almost invariably ensures that federal judges are intelligent, well educated, and professionally experienced. Those qualities are conducive to judicial independence. In addition, federal judges enjoy the following constitutional guarantees: life tenure during good behavior, (8) non-reducible compensation, (9) and removal only through impeachment. (10) These protections free federal judges from the need to behave in politically advantageous ways in order to keep their positions. (11) They also insulate judges from retribution when they make unpopular decisions. (12)

   State judges may be less independent than their federal counterparts. Indeed, it has been remarked that "The state court house is, if anything, too close to the state legislative house...." (13) In many states, particularly those where judges are elected at some or all levels, (14) the screening process can be considerably less rigorous than in the federal courts. (15) Elections are frequently decided not by qualifications (about which the voting public often knows little) but by advertising. Campaign contributions that buy advertising undermine judicial independence (16) by clouding the exercise of judicial judgment with considerations related to financial obligation. (17) Also, state judges typically must win re-appointment or re-election on a relatively frequent basis, (18) sometimes every four or six years. (19) With the shadow of the next campaign looming, it can be hard to focus on doing what is right under the law and the facts, rather than doing what is popular.

   There are other obstacles to state judicial independence. The financial provisions for state judicial service and retirement are sometimes inadequate to attract or retain well qualified judges. (20) Controversial rulings may result in legislatures withholding salary increases or reducing appropriations for the judicial system as a whole. (21) And criticism fueled by single-issue politics may cause good judges to be swept from office by elective or appointive authorities, or to voluntarily resign. (22) Indeed, in some recent instances, judges have even been threatened with physical violence because of their decisions. (23) It has also been argued that state systems imposing mandatory retirement based on age (24) threaten judicial independence. (25)

   Despite these threats, one could make a strong case that state judges often exercise a high degree of judicial independence. An excellent example is the transformation of American tort law during the twentieth century. During the 1900s, state judges led the fight to make the rules governing accident compensation more responsive to the needs of injured persons and the public interest in deterring accidents. (26) State judiciaries have also sometimes surpassed the federal courts in protecting individual rights. (27) Thus, it would be inaccurate and unfair to suggest that state courts are subservient to the other state government branches or the whims of public opinion.

   If both the federal and state judiciaries exhibit judicial independence, then judicial independence is not simply a function of provisions governing judicial selection, compensation, and retention of office, which differ greatly among the federal and state governments. There must be other factors that have allowed judicial independence to flourish in America in a way that has often not been the case in other countries. (28)

   One factor easily overlooked, but quite significant, is the judicial ethical norms that have developed in the United States. These norms shape the conduct of American judges on a daily basis and give concrete meaning to the idea that judges should be free from undue or inappropriate pressures when performing the duties of office.

   In focusing primarily on these types of threats, this article is concerned mainly with threats to "decisional" judicial independence, rather than "institutional" independence. (29) However, to the extent that the relevant ethical norms have been codified in all states and are enforced by disciplinary tribunals, there is obviously an important institutional dimension to these norms. Without these enforceable norms, (30) the concept of American judicial independence, as manifested in the conduct of judges, would be uncertain, widely variable, and perhaps unrecognizable.

2. RULES OF JUDICIAL ETHICS BEARING ON JUDICIAL INDEPENDENCE

   The principal guide on issues involving the conduct of the judiciary is the ABA Model Code of Judicial Conduct (the Judicial Ethics Code). (31) The current code and its predecessor (32) have influenced the law throughout the country. (33) It must be emphasized that state codes vary from the ABA model in numerous respects, so the code of the jurisdiction in question must be consulted in any given case. For example, since all judges are elected in Texas, the Texas canon on political activities by judges and judicial candidates is materially different from the parallel canon in the ABA code. (34)

   It would be easy to read the entire Code of Judicial Conduct as an homage to the principle of judicial independence. Indeed, the first sentence of the preamble states: "Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us." (35) Canon 1 then proclaims the leitmotif that animates every section of the Code and many decisions interpreting its provisions: "A judge shall uphold the integrity and independence of the judiciary." (36) Further, aspirants for judicial office are admonished to "maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary." (37)

   Still, it is more instructive to focus on substantive provisions in the judicial ethics code designed to minimize intrusions upon independent judicial decision making. There are at least four areas of concern directly bearing on judicial independence. These categories encompass the rules relating to (1) ex parte communications, (2) gifts, (3) political activities, and (4) certain problematic relationships. The standards governing each of these subjects define, in large measure, the ethical foundations of American judicial independence.

   1. Ex Parte Communications

      It is axiomatic under the American system of justice that all sides to a dispute have a right to be heard. The rules (38) prohibiting substantive (39) ex parte (40) communications about pending or impending cases protect this fundamental right, but in fact they sweep more broadly. The rules ban not merely private communications between a judge and a litigant or the litigant's lawyer. They also prohibit a wide range of undisclosed communications between a judge and any other person about the merits of a case. There are a few narrow, logical exceptions (41) to the general principle. The exceptions permit substantive communications between a judge and members of the judge's staff (42) or other judges, (43) and even communications with disinterested legal experts, provided the parties to the case are fully informed of what the experts say and allowed to respond. (44) Otherwise, judges are prohibited from discussing the merits of the suits before them with third parties. By insulating judges from contact with outside influences during the decision making process, the ethical standards tend to ensure that judges act independently when performing their judicial duties.

      It is difficult to overstate the importance of the rules against ex parte communication. The rules help to ensure that a judge's decision is based on nothing other than law and evidence. (45) Without such provisions, it would be impossible for parties to effectively address the factual assertions and legal arguments placed before judges. Moreover, public confidence in the judicial process would be undermined because the citizenry would be deprived of the information that emerges from an open and transparent litigation process. Indeed, the public would not even know the identity of the persons who are making arguments that may prove critical in the resolution of pending matters.

      Not surprisingly, allegations of improper ex parte communications are taken seriously, and violations can result in sanctions that carry with them the sting of disgrace. The careers of...