Original sin and judicial independence: providing accountability for justices.

• Author: Carrington, Paul D.

TABLE OF CONTENTS I. A DEFINING CHALLENGE A. The Founding Vision 1. The Federalists' "Ark of Safety" B. Removing a Disabled Judge: The Pickering Case C. The Impeachment of Justice Chase: Are Justices Different? 1. How To Remove a Justice CONCLUSION I. A DEFINING CHALLENGE

The independence of the judiciary is an enduring and defining objective of the legal profession. We lawyers, of all citizens, have the greatest stake in shielding judges from intimidation or reward. And that task of protecting judicial independence stands today at the very top of the agenda of the American legal profession. (1)

The integrity of law and legal institutions requires more than just the protection of judges. It is equally dependent on the willingness and ability of judges to maintain virtuous disinterest in their work. (2) Some might explain their occasional failings as manifestations of the original sin inherited from Adam; (3) whatever their source, the proclivities of judges to indulge or celebrate themselves are perpetual temptations and judicial self-restraint is a perpetual challenge. As Cardozo explained: "The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by." (4)

A primary and indispensable constraint on those who judge is the moral constraint imposed by the professional community to which they belong. The primary function of transparency in proceedings at trials and arguments, and of published decisions and opinions explicating judges' rulings, is to manifest their disinterest not only to the parties whose contentions they judge, but also to their lawyers, who share responsibility for imposing moral judgment on the professionalism of judges. (5)

Judicial disinterest may have been made increasingly difficult in the twentieth century by the replacement of legal formalism with a legal realism that commissions judges to be less constrained by preexisting texts and more attentive to the social consequences of their judgments. (6) A secondary effect may be to inflate the collective vanity of the judiciary. The greater freedom judges assert in taking account of the social consequences of their decisions, the harder it may be for them to lay aside their personal political preferences, the related interests of their friends and allies, and the adoration or hostility of a public that either celebrates or attacks them, depending on the reaction to the policy consequences of their decisions. There is, to be sure, no empirical evidence of this effect, but it is reasonable to suspect that it occurs and contributes to public concerns about possible excesses of judicial independence.

As judicial virtue has become more difficult to practice, it has become more in need. The present and rising mistrust of the American judiciary is not a direct consequence of the change in legal philosophy, but there is an obvious connection. As judges have increasingly and openly presumed to shape our polity, citizens who disagree with their politics have felt justified in mistrusting their disinterest and challenging their independence. (7)

It is also increasingly difficult for citizen-lawyers performing their duty to judge the judges to maintain their own disinterest. One form of widely shared human weakness is that which inclines citizen-lawyers to link their respect and support of judges to their own preferences about the outcomes of the cases and political issues judges decide. But another is uncritical fidelity to the judiciary. A failure by the profession to criticize judicial misdeeds deprives judges of the sense of moral accountability to their peers that is sometimes needed to reinforce their capacity to know and restrain themselves. Judging judges wisely, like judging cases wisely, requires self-knowledge, self-discipline, and moral courage on the part of citizen-lawyers and their professional organizations.

Effective moral reinforcement of the disinterest of judges by lawyers requires a system of judicial accountability to deter and punish misconduct that exhibits disrespect for citizens or their rights. Laws are needed both to govern judges' conduct and to provide occasions for judging them. The presence of such legal processes reminds lawyers of their duties and alerts judges to the existence of a judgmental profession. Such laws have been and are evolving in many state judicial systems. Since 1980, 336 state court judges have been removed as a result of disciplinary proceedings. (8) As Charles Geyh has affirmed, the states are "light years ahead of the federal judiciary" in dealing with misconduct of judges. (9) Belated progress has been made in the federal system, (10) but there remains no system of accountability for the misdeeds of Supreme Court Justices other than the impeachment process.

This Essay aims to define a role for citizen-lawyers in advocating and protecting the independence of judges, and especially the independence of Justices of the Supreme Court, who increasingly exercise political power, and who are subject to no personal accountability whatsoever for the social and economic consequences of their decisions. (11) The more we confer such political power on our judges, the more important it is that there be a system of disinterested accountability to correct their nonpolitical misdeeds and maintain their awareness of their own mortal limitations. Such a system or process is first a reminder to the profession of its responsibility for addressing judicial sins, and then a reassurance to the public that even Justices are accountable to law. The reform proposed below will not alone reverse the trend of mistrust of the federal judiciary that presently alarms many citizen-lawyers, but it would help.

1. The Founding Vision

   The moral challenge of judicial independence is not new. It may help the reader to consider its presence in the early days of the Republic. The distance in time may help to maintain our own disinterest in assessing alternatives.

   The American War for Independence was, the reader knows, initiated and led by a Continental Congress comprised in large part by lawyers presenting themselves as citizens practicing selfless civic virtue, that is, as advocates for the long-term interest of those they purported to serve. (12) Heartened by their shared sense of high purpose and professional commitment, Thomas Paine optimistically proclaimed their achievement: "LAW IS KING." (13) Paine's revolutionary vision was that legal texts could and would express the intent of those governed so that disinterested judges could rule in the name of the governed as well as in the name of law, and thus would gain the acceptance and support of those whom they judged. (14) The Declaration of Independence protested, among other grievances, the failure of the king to provide the colonials with an independent judiciary whom they could trust to respect their legal rights. (15) The Founders implicitly promised to correct this failing.

   But what is it that federal judges and Justices should be "independent" of, other than a malevolent king? The Founders' answer to that question was never clearly stated, and their obscure text and its intent remain contested issues in contemporary discourse.

   Some of the Founders fully understood that the judicial independence on which the rule of law depends is derived from the moral courage and professional self-discipline of judges. Only those qualities enable them to discount not only their own interests but those of their friends and political allies. George Wythe, the first American law professor, (16) for instance, provided a premier example of the virtuous judge who could command respect on the regal scale that Paine had anticipated. (17) Classically minded Virginians compared Wythe to Aristides, "the Just." (18) It was said of him, and apparently never questioned, that "[a] dirty coin [never] reached the bottom of [George] Wythe's pocket." (19) Perhaps best remembered as the law teacher to Thomas Jefferson, John Marshall, and Henry Clay, Wythe concluded his career as the Chancellor of Virginia. (20) Acting in that capacity, he was among the first judges ever to invalidate legislation as inconsistent with the higher law expressed in Virginia's Constitution. (21) He rendered that courageous judgment alone, knowing that the law he invalidated had favored the interests of his friends and political allies in the revolutionary movement and benefited some of those despised English against whom the Revolution had been waged.

   Colonial judges were perceived to be intimidated by the royal government, (22) and the revolutionary lawyers had sensed their lack of judicial independence. They often had in mind the celebrated Edward Coke, (23) who had been dismissed by King James I for his stated disregard of royal preferences in the decision of cases brought before the king's courts. (24) The Glorious Revolution of 1688 had brought King William and Queen Mary to the throne as monarchs who agreed to disown the executive power over the judiciary exercised by King James. (25) The Act of Settlement of 1701, agreed to by the monarchy, declared that their judges would serve for the period of their "good behavior" and be removable only by address of Parliament. (26)

   The Founders were also familiar with the experience of Francis Bacon. His term as Chancellor of England came to an early end in 1621 when he confessed to committees of Parliament and the House of Lords that he had received financial assistance from claimants whose claims he had upheld. (27) They accepted the familiar wisdom that power corrupts and knew that corruption takes diverse forms. (28) But without pausing during a time of war to study the issues presented, those writing constitutions for new American states (29) drew from the Act of Settlement the term "good behavior" as the standard for the removal of a misbehaving judge. (30) The Founders also later used the term in Article III of the...