Preserving Judicial Independence: An Exegesis

By Carlton, Alfred P., Jr. | Fordham Urban Law Journal, February 2002 | Go to article overview

Preserving Judicial Independence: An Exegesis


Carlton, Alfred P., Jr., Fordham Urban Law Journal


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 In 1802, Congress, controlled for the first time by Jeffersonian Republicans, repealed the Judiciary Act of 1801.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. …

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