Preserving judicial independence: an exegesis.

• Author: Carlton, Alfred P., Jr.

When the English landed in Jamestown in 1607, they brought to our shores their language, their government, their commercial system, and their courts. (1) We kept the first three but threw the fourth one back. The court system, at least in the colonies, was badly flawed.

Over the seventeen days in which Thomas Jefferson wove the Declaration of Independence, he carefully selected the threads of twenty-seven specific grievances against the King to make his case for American independence. (2) In that document, Jefferson declared that the King had "made Judges dependent on his Will alone, for the tenure of their Offices, and the Amount and Payment of their Salaries." (3)

When the signers of the Declaration united behind the pen of Jefferson, they literally pledged "our Lives, our Fortunes and our sacred Honor" to the principle of judicial independence. (4) James Madison, the principal author of the Constitution, considered judicial independence an indispensable component of a democracy. (5) If a declaration of rights was "incorporated into the constitution," he observed, "independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislature or executive...." (6) These words came from one who had experienced the abuses of a judiciary whose authority derived more from kings than principles.

Our early state constitutions also acknowledged the importance of judicial independence by providing for appointed judges serving within an independent branch of government. (7) Indeed, the Massachusetts Constitution's provisions for life tenure, insisted upon by John Adams, (8) may well have been the model for Article III of the Federal Constitution. (9)

Despite the early sentiment in favor of an independent judiciary, it was not fully realized in the early years of the Republic. In 1802, Congress, controlled for the first time by Jeffersonian Republicans, repealed the Judiciary Act of 1801. (10) This repeal essentially handed pink slips to the federal judges created by the Act and appointed by lame duck Federalist John Adams. (11) Resolution of the legitimacy of judges appointed under the Act was delayed when the 1802 Supreme Court term was cancelled by the Republican Congress. (12) Marbury v. Madison was put off until 1803, (13) when the authority of the Supreme Court of the United States to declare federal acts unconstitutional was established, citing the North Carolina case of Bayard v. Singleton as precedent. (14)

Still not having exorcised its pique with the judiciary, the Republicans impeached Supreme Court Justice Samuel Chase in 1804. (15) Since "high Crimes and Misdemeanors (16) were then, as now, in the eyes and anger of the beholder, (17) Chase was called to account for voiding part of a congressional act while "riding circuit" as a trial judge. (18) Chase must have stood uneasy in the Senate for two reasons: first, the charges themselves and, second, the presiding officer was Vice President Aaron Burr who had only recently shot and killed the Federalists' intellectual leader Alexander Hamilton in their notorious duel. (19) Chase was nevertheless acquitted and served as an effective and distinguished member of the Court until his death. (20)

These early excursions into the minefields of our uniquely American brand of judicial independence remind us of the need for constant vigilance. Judicial independence endures because it is not a distant ideal; it does not go in and out of fashion with public opinion; it is not forfeited through the occasional indiscretions of judges or judicial candidates seeking a seat on the bench. It is as indispensable for a justice of the peace as a Justice of the Supreme Court.

Judicial independence is precious to our way of life. Judicial independence is a fundamental principle upon which our country was founded and for which Americans have died, not only at Yorktown (21) and Valley Forge, (22) but at the Alamo, (23) Iwo Jima, (24) Inchon, (25) Khe Sanh, (26) and, now, Mazar-E-Sharif. (27)

Our responsibility to the founders who instituted judicial independence and the patriots who protected it, is constant vigilance against those who would undermine it. Our democracy will not function without independent courts. Trying to maintain our experiment in self government without a truly independent judiciary is like trying to push a rope. It just won't work.

It will work, however, and work best, when the courts enjoy the public's approbation and support. After all, the courts are dependent on the public's perception that the courts are impartial and independent of manipulation or control by the two political branches of government and narrow special interests. If the courts are co-opted through pressure, coercion, or intimidation, we lose the necessary checks that the courts provide in our democratic republic. To my way of thinking, then, judicial independence is the most critical barometer of the health of a democratic republic.

In some ways, the judicial branch is the one most accessible and responsive to the people. Structurally and practically, the executive and legislative branches are more suited to respond to majorities or large minorities. (28) Only the courts are equipped to respond immediately to petitions and redress the grievances of individuals. If powerful interest groups and campaign contributions corrupt the courts, where is the check on the wealthy and the powerful against the general welfare and those without the power of what Madison characterized as factions?

The courts are the last lines of defense of the Constitution and individual rights. They are the country's protection against an over-reaching government, official corruption, and the mood swings of popular opinion. They are the ballast of democracy that keeps the ship upright through bad weather, shifting loads, and poor seamanship--the bulwark of the republic. (29)

How important is it that our courts be perceived as impartial and fair? The public expects the executive and legislative branches to be biased toward an agenda and the groups that support it. But if the public ever perceives that the court bases its decisions on factors other than the evidence, the laws, and the Constitution, it will lose its respect for the law. And when the public loses its respect for the law, we lose the centripetal force that binds us to our nationhood.

Thus far we have spoken about the necessity for judicial independence, but what exactly is it and what are the problems associated with maintaining it?

Judicial independence only exists when judges base their decisions on a good faith interpretation of the laws, the Constitution, and the facts of an individual case. Any external pressure or influence that causes a judge to deviate from such an interpretation diminishes judicial independence.

In 1997, the ABA's Commission on Separation of Powers and Judicial Independence issued its report, An Independent Judiciary. (30) The Commission acknowledged several thorny problems in the federal judiciary system. (31) But by and large, the Commission concluded that "Without denying its faults, our federal judges administer impartial justice of unparalleled quality." (32) Not so in the states. The Commission concluded that the greatest threats to judicial independence lie in the state courts. (33) There are a number of reasons why.

Sheer numbers is one reason. State courts handle more than ninety-seven percent of all litigation in the United States. (34) There are more cases, more courts, more judges, and more opportunity for mischief. Second, unlike federal judges, most state judges have no lifetime tenure. Judges must stand for either election or retention in thirty-eight states. (35) Indeed, some eighty percent of all state court judges stand for election at some point in their careers. (36) Judges must campaign for their office and raise increasingly large amounts of money--usually from lawyers and narrow interest groups--to gain or retain their seats. (37)

Voters may not like a federal court ruling, but, because of life tenure, they can be certain that it was not made to secure contributions or votes. State judges, fairly or not, do not enjoy the same benefit of the doubt and, indeed, forfeit it through questionable campaign behavior or the acceptance of campaign contributions that present the appearance of impropriety. As judges are increasingly thrust...