Who needs an independent judiciary?

• Author: Webster, Peter D.

Our founding fathers envisioned a nation built on respect for the rule of law. Thomas Paine recognized this fact when he observed that our country knew no monarch, for, "in America the law is king." (1) They recognized that the extent of the people's respect for the rule of law would bear a direct correlation to whether they perceived that the law was being administered fairly. That, in turn, would depend on whether the people perceived that judges were deciding cases justly and without favor, according to the facts and the applicable law, and without regard to extraneous influences, whether in the form of interest groups or popular opinion. In its Constitution of 1780, Massachusetts expressed these thoughts:

It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial, and independent as the lot of humanity will admit. (2) Following the Glorious Revolution in England in 1688, English judges were granted considerable independence. They were appointed to serve "during good behavior" and given a fixed salary, so that neither the crown nor Parliament might influence their decisions. (3) That same independence was not granted to judges in the colonies, however. As a result, among the abuses of the king of England listed in the Declaration of Independence was that "He ha[d] obstructed the Administration of Justice ... [and] made Judges dependent on his Will alone, for the Tenure of their Offices, and the Amount and Payment of their Salaries." (4) In a letter written in June 1776, Thomas Jefferson said:

The dignity and stability of government in all its branches, the morals of the people, and every blessing of society, depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislature and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that. The judges, therefore, should always be men of learning and experience in the laws, of exemplary morals, great patience, calmness and attention; their minds should not be distracted with jarring interests; they should net be dependent upon any man, or body of men. To these ends, they should hold estates for life in their offices, or, in other words, their commissions should be during good behavior, and their salaries ascertained and established by law. (5) To insulate federal judges from such extraneous influences, the founding fathers included provisions in our federal Constitution ensuring that those judges would hold office for life, "during good behavior"; (6) that their compensation could not be diminished while they remained in office; (7) and that they could be removed only by the relatively unwieldy impeachment mechanism, and then only for "Treason, Bribery, or other high Crimes and Misdemeanors." (8) Alexander Hamilton expressed the motivation behind the decision to include those provisions in the Constitution when, writing in Federalist Paper number 78 in support of the need for life tenure, he said:

That inflexible and uniform adherence to the rights of the constitution and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would in some way or other be fatal to their necessary independence. If the power of making them was committed either to the executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the constitution and the laws. (9) Speaking of the counter-majoritarian role of courts as guardians of the rights of minorities, Hamilton said:

This independence of the judges is equally requisite to guard the constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information and more deliberate reflection, have a tendency, in the mean time, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. (10) Chief Justice John Marshall expressed the same sentiments during the debates of the Virginia State Convention in 1829, when he said:

The Judicial Department comes home in its effects to every man's fireside: it passes on his property, his reputation, his life, his all. Is it net, to the last degree important, that he [the judge] should be rendered perfectly and completely independent, with nothing to influence or controul [sic] him but God and his conscience? (11) He concluded his remarks on that occasion with this: "The greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people, was an ignorant, a corrupt, or a dependent Judiciary." (12)

Historically, attacks on judicial independence have come in many forms. In 1805, President Jefferson used the impeachment of Justice Samuel Chase to try to influence or remove...