Independence of the Judiciary for the Third Century - Deanell Reece Tacha

• Publication year: 1995

Independence of the Judiciary for the Third Century

Deanell Reece Tacha^*

For i agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers . . . the complete independence of the courts of justice is peculiarly essential in a limited constitution."¹

Alexander Hamilton's impassioned advocacy of an independent judiciary rings as true now as it did when Hamilton was attempting to convince the people of the State of New York to ratify the new Constitution. For over 200 years, the independent federal judiciary has been a powerful tool in guarding the Constitution and the rights of individuals. Indeed, the principle of an independent judiciary is so strongly ingrained in our constitutional structure that most Americans scarcely give it a second thought.

Although the general principle of judicial independence enjoys broad support, its definition is elusive. For members of the judiciary, the concept of judicial independence has both an institutional meaning and an individual meaning. In its institutional form, it is a corollary to the principle of separation of powers. That is, the judiciary is a vital branch of government with constitutionally delegated powers, and we must be free to act and interact with the other two branches. Each branch must bear its appropriate share of constitutional responsibilities and be accorded full respect in regard to those duties.

In its individualized sense, judicial independence means simply that a life-tenured federal judge is free from all political and other outside pressures to decide cases in a wholly impartial manner. She must commit herself to following the Constitution, the statutes, common law principles, and the precedent that interprets each of them. Her decisionmaking is limited to properly admitted evidence, constrained by appropriate procedural rules, records, and legal principles. Prevailing political winds have no effect. The codes of conduct require a judge to adhere not only to the principle of actual impartiality and absence of outside influence, but also require a judge to be free from even the appearance of any improper influence. Thus, a judge resigns from all other affiliations that would call her impartiality into question, divests herself of any financial interests which would raise similar questions, and refrains from all activity that appears to have the capacity to influence personal decisionmaking.

Examining the independence of the judiciary and perceptions about its erosion requires that one see the issue in both the institutional and the individual sense. Alexander Hamilton saw it both ways. He refers in some places to "the judiciary" as a body, in other places he refers to the independence of "courts of justice," and he clearly points to the importance of the "independence of the judges."² In quoting Montesquieu, he refers to "the power of judging."³ In this article, I will attempt to illustrate some of the problems that face the judiciary in both the individual and institutional contexts.

Before I begin my comments, however, I should admit my own biases on this subject. I understand that any discussion of the independence of the judiciary is self-serving to me and my colleagues and may be dismissed on that ground. I implore persons concerned about these issues, and particularly the legislative and executive branches of government, to pierce the obvious personal interests of the judiciary in protecting its independence and examine with us what it means in the contemporary context.

My perception is that most people, including many judges, think about independence of the judiciary in the rather simplistic form of the life tenure protection. That is certainly one important characteristic. It does not, however, define on a day-to-day basis what factors allow a judge as an individual and the judiciary as a whole, to act independently in the decisionmaking role. Life tenure symbolizes the individual judge's ability to resist any temptation to do the popular or politically correct thing and to conform to the case or controversy requirement and other judicial constraints.

As I attempt to point out in this article, however, protection of judicial independence includes subtle but important protections in the relationships between the judiciary and the other two branches of government. Alexander Hamilton's discussions about the importance of an independent judiciary in the federalist Nos. 78-83 contain suggestions of many attributes beyond life tenure that should be protected in order to maintain an appropriate level of independence for the exercise of judicial power. My hope is that all of us will look beyond the blatant personal interests of judges and see the attributes of independence that are indispensable to protecting the republic and the rights of those of us who call it home.

I. Impinging on Judicial Independence in the Individual Sense

Whether real or perceived, judges experience a sense of pressure that suggests to them that they are not as independent in their decisionmaking role as Hamilton told them they should be and as the American public has a right to expect. I served as Chair of the Judicial Conference Committee on the Judicial Branch⁴ from 1990-94. Because of that ostentatious title, I received numerous letters from judges around the country. These letters gave me increasing concern. Thoughtful jurists, none of whom falls within the category of those who simply seek additional comforts or resources beyond their needs, are echoing a growing refrain of concern about whether the independence of the federal judiciary is being gradually eroded. The letters contain a sense of sorrow and urgency, asking the judiciary itself and, implicitly, the other branches of government, to consider the importance of protecting the independence of the judiciary.

The concern on this topic reached a mild crescendo when a group of judges from the Fourth Circuit formally requested that the Judicial Conference, through its Committee on the Judicial Branch, specifically consider the question of the independence of the judiciary. I appointed a subcommittee chaired by Judge Randy Rader of the Federal Circuit to consider the issue. They, along with several able scholars and practitioners, looked at this question. This symposium is one of the products of that inquiry. We have all struggled with the contemporary meaning of judicial independence. None of us are particularly satisfied with the scope of our inquiry, the extent of our ability to analyze the question, and certainly any resulting suggestions. We are, however, satisfied that the issue of judicial independence is one that deserves careful consideration and thought, giving emphasis to Hamilton's statement about its importance and trying to place its value into the context of the federal government that we know today.

I do not pretend with this essay to evaluate substantively the concept or even the values of judicial independence. It is a given that judicial independence is a good in this republic. I know that it is a value that judges think is eroding, and I hope only to shed a little light on some of the aspects of the concern of the judges. I know that the dialogue will not even begin in an effective manner until the other two branches of government are actively involved. Indeed, the question is probably much larger than government. The issue probably also relates to the extent of the public's understanding, or lack thereof, of why the judiciary should be independent and even of the role of the judiciary. I have addressed those topics in other contexts and will not attempt to do that now.⁵ My goal here is only to provide a rudimentary description of those factors that may contribute to the concern of the judges with what is happening to the principle of judicial independence.

Implicit in the definition of an independent decisionmaker is the view that the judge is independent in her manner of carrying out her duties. That is, the independent judge sets her own cases, controls a trial or appellate calendar, follows personal preferences in utilization of staff, and works at a speed and in a manner most compatible with her own work habits.

A description of judicial independence which includes the capacity to allow each individual judge to follow her own working habits and preferred patterns of handling the caseload has another subtle characteristic which, on its face, implicates the troublesome area of adequate budgetary resources. In order for a judge to handle her caseload and maximize productivity, she...