A Few Thoughts on the Importance of an Independent Judiciary

By Hirshon, Robert E. | Journal of Appellate Practice and Process, Fall 2002 | Go to article overview

A Few Thoughts on the Importance of an Independent Judiciary


Hirshon, Robert E., Journal of Appellate Practice and Process


Nothing is more important to our nation than an independent judiciary, for judicial independence goes to the very core of our democracy. In fact, if you want to measure the level of freedom in any country, the first thing to be determined is whether that nation's judges are truly independent, not just from other branches of government, but from all influences of power, because ultimately a free society depends upon a judiciary that is loyal only to the law.

An independent judiciary is not a given. It is like a delicate flower that requires constant nurturing. Recently, however, our state courts received a shock that may threaten their bloom. The United States Supreme Court ruling in Republican Party v. White, (1) which declared the "announce clause" unconstitutional, is the culprit. This decision is likely to create a judiciary that over time will become less independent and more beholden to individuals. At a minimum, the Supreme Court's opinion will open the door to the same cynical election process for state judges that has infected the electoral processes for our two other branches of government.

Why does this cynicism exist? Why is it at an all-time high? In part the answer is because Americans are convinced that special interest groups have far too much power over the legislative and executive branches. Voter apathy and the demand for campaign finance reform are two manifestations of this new reality. To date, the judiciary has escaped the perception that judges are influenced in their decisionmaking by special interests. But how much campaign money will need to be spent, how many issue-advocacy ads will need to be aired, how much negative advertising by judicial candidates will need to be created before the public changes its mind? As Benjamin Cardozo himself once pointed out, "[t]he great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by." (2) And once the public changes its perception of how justice is determined, will the judiciary ever get its credibility back? Our profession's own recent history suggests that it will not.

On June 27, 1977, the United States Supreme Court decided Bates v. State Bar of Arizona. (3) Balancing society's interests in the free flow of commercial speech against the need to regulate the legal profession, the majority of a deeply divided Court rejected the Arizona Bar's argument that advertising would ultimately erode true professionalism and diminish the legal profession's reputation in the community. The last twenty-five years have proved that majority wrong. And Chief Justice Burger's premonition that the Court's decision would ultimately redound both against the profession and the general public unfortunately has turned out to be accurate--too accurate.

Quite simply, the majority in Bates failed to acknowledge human nature. Lawyers quickly determined that the Supreme Court had created a crack in the heretofore solid armor of professionalism. They learned that they could advertise just like any other trade, and in the process they found out what Madison Avenue already knew: Some approaches sell while others do not. Thus legal advertising became slicker in its packaging as lawyers exuberantly pushed the envelope beyond what many Americans considered good taste.

The American Bar Association and many state and local bar associations did what they could to prevent misleading advertisements and to temper the more distasteful ads, but the die was cast. Advertising helps the bottom line and the bottom line became what it was all about. After all, in Bates, the Supreme Court had labeled our profession a trade. And a trade is really a business. "If you're injured, it must be somebody else's fault," became more than just a slogan, it became our profession's scarlet letter. Is there any wonder why the legal profession is one of the least respected by the public? …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

A Few Thoughts on the Importance of an Independent Judiciary
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.