Introduction to Mercer Law Review Symposium on Federal Judicial Independence - L. Ralph Mecham

• Jurisdiction: United States,Federal
• Publication year: 1995
• Citation: Vol. 46 No. 2

FEDERAL JUDICIAL INDEPENDENCE SYMPOSIUM

Introduction to Mercer Law Review Symposium on Federal Judicial Independence by L. Ralph Mecham^*

I thank the Mercer Law Review for the opportunity to write this Introduction and for publishing an edition on Federal Judicial Independence. This symposium presents a forum for academicians and for representatives of the three branches of government to discuss a subject which is fundamental to the constitutional concept of separation of powers. Each author brings a unique perspective and philosophy to a dialogue that is essential to the constructive development of good government.

John Jay, the first Chief Justice of the United States, when commenting upon the debate surrounding the formation of the federal judiciary, observed that "A judicial Controul, general & final, was indispensable. The Manner of establishing it, with Powers neither too extensive, nor too limited; rendering it properly independent, and yet properly amenable, involved Questions of not little Intricacy."¹

More than two hundred years later, the parameters of judicial independence continue to be questioned and debated. The contemporary debate on judicial independence does not concern whether federal judges should be independent, but rather, the nature and extent of that independence. In an attempt to define the concept of judicial independence, one judge has recently opined:

Judicial independence is a judge's ability to decide a case free from pressures or inducements. Judicial independence has an institutional character, which is best seen in our constitutional separation of powers. It has an individual character, which is partially protected by the Constitution in the provisions for life tenure and the guarantee of no diminishment of salary, but which extends further to encompass those conditions in which and under which a judge decides the cases. These ancillary elements of individual judicial independence, including security, facilities, support, workload, rules of procedure, and case management, normally do not impact upon judicial independence but under extreme circumstances may do so.

Judicial independence is important not only to the judicial system. The independence of the judiciary must be credible to those being judged. Therefore, the exercise of judicial power requires institutional arrangements which will instill confidence that the power is being properly applied.²

I consider an independent judiciary to be the cornerstone of a free society and the rule of law. My recent experiences with judges and court administrators from China and from emerging democracies have reinforced my fundamental belief that without a judiciary that operates independently, yet accountable to the public and political branches of the government, the rights of citizens under a constitution go unchecked, development of the economy flounders, and powers associated with military dictatorships flourish. We are so fortunate to live in a country under a written constitution that has survived over two hundred years. To me, it is obvious that the preservation of judicial autonomy is integral to the strength of our democracy.

The founders of the republic recognized that it was difficult to define the extent to which the judiciary should be independent. Judges were expected to be final arbiters who followed the letter of the law; they were also expected to be independent and impartial.³ Chief Justice Jay observed that the Judiciary Act of 1789—which literally created the American federal judiciary—did not resolve every question surrounding the powers of the third branch.⁴

These conflicting values remain contemporary concerns. One cannot have separate branches unless they are independent of each other. Yet independence is also a relative concept; a branch is only independent of another branch for certain purposes or to some degree. Given the tradition of shared, as well as separate powers in our Constitution, independence is often countered by interdependence.⁵

The Chief Justice, in his 1994 report on the federal judiciary, focused on the interdependence between the judicial and legislative branches. This dependence illustrates the "delicate relationship among the dispersed powers of the Constitution."⁶

Article III of the Constitution vests the judicial power of the United States in the Supreme Court and in such other federal courts as Congress may create. It grants to Article III judges two significant protections of their independence: they have tenure during good behavior, and their compensation may not be diminished during their term of office. But federal courts are heavily dependent upon Congress for virtually every other aspect of their being.⁷

The Chief Justice noted that Congress authorizes every individual judgeship in the federal system and establishes the level of judicial compensation. The jurisdiction of the federal courts is determined by Congress. Federal question jurisdiction, which today is the basis for so much litigation in the federal courts, was not conferred upon these courts by Congress...