Kentucky's Constitutional Crisis and the Many Meanings of Judicial Independence

• Date: 20 August 2012
• Pages: 73-99
• DOI: https://doi.org/10.1108/S1059-4337(2012)0000058007
• Published date: 20 August 2012
• Author: Emily Zackin

KENTUCKY’S CONSTITUTIONAL

CRISIS AND THE MANY

MEANINGS OF JUDICIAL

INDEPENDENCE

Emily Zackin

ABSTRACT

One of the most dramatic controversies over judicial independence in the

United States occurred at the state level, in antebellum Kentucky, when

two entirely different state high courts remained in operation, each

claiming to be the only legitimate tribunal. This chapter describes

Kentucky’s two-court crisis, but focuses primarily on the constitutional

convention of 1849, which followed it. Through the lens of modern

scholarship about judicial independence, the lessons that antebellum

Kentuckians drew from their own history seem quite counterintuitive.

They did not view their project of judicial design as a matter of balancing

judicial independence with accountability, a task that many modern

scholars of American politics have posited as the central problem of

judicial design. Instead, Kentucky’s constitutional convention sought to

structure an institution that would allow the state’s courts to respond to

popular sentiment without compromising their independence. Thus, these

debates suggest frameworks for understanding judicial independence

Special Issue: The Discourse of Judging

Studies in Law, Politics, and Society, Volume 58, 73–99

Copyright r2012 by Emerald Group Publishing Limited

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1108/S1059-4337(2012)0000058007

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that do not pit independence against judicial accountability or popular

politics, but attempt to discern which forms of politics threaten the

independence of courts, and which forms may not.

INTRODUCTION

American political history is replete with conflicts about judicial indepen-

dence. The Supreme Court’s ruling in Marbury v. Madison, Franklin

Roosevelt’s court packing plan, and the U.S. Senate’s refusal to confirm

Robert Bork are just a few familiar examples of such controversies. One

of the United States’ lesser-known, but most dramatic struggles about

judicial independence occurred at the state level, in antebellum Kentucky.

For three years, Kentucky’s government had two supreme courts, each of

which claimed to be the only legitimate tribunal and insisted that the

existence of its counterpart was completely unconstitutional. The struggle

over which court should disband was so bitter and polarizing that many

feared the conflict would result in violence. However, Kentucky reached a

peaceful resolution to this constitutional crisis, and 20 years later, held a

constitutional convention, which completely overhauled the state’s judicial

structure.

Under the new state constitution, Kentucky switched from an appointive

to an elective judiciary. The state began to select all of its judges, and even

its clerks, through popular election, and it forced sitting judges to stand

for reelection at the end of each term in office. Judges on the state’s highest

court would serve eight-year terms; six-years terms were given to circuit

courts judges, and four-year terms to judges on county courts. Not

only could a judge be removed at the end of each term in office through an

election or in the middle of the term if he had committed an impeachable

offense, but the constitution empowered a two-thirds majority of the

legislature to remove any judge, even from the state’s highest court, at any

time and for any reason at all.

An observer familiar with the structure of the federal judiciary and

immersed in twentieth- and twenty-first century scholarship about judicial

independence in the United States would likely conclude that the architects

of Kentucky’s antebellum court system privileged judicial accountability

over judicial independence. However, in the context of real-life choices

about institutional design, Kentuckians did not characterize their choices

this way. While elements of their debates resemble elements of our own,

EMILY ZACKIN74