Teaching the Meaning and Value of an Independent Judiciary

Article excerpt

Because of its unique role in our democracy, with the rule of law its only constituent, the judiciary is the least understood branch. Unlike the other branches, its role and responsibilities are not obvious to the uninformed. Lack of information about the proper role of the judiciary and its officers leads the public and even public officials to blame the courts for the ills of society. It frequently appears the judiciary is being criticized for simply doing its job.

As though it is not bad enough that we live in a country where educators generally appear to place little value on explaining the role and responsibilities of the judicial branch to impressionable youth, public officials representing all three branches seem to compound the problem by words and deeds that mislead the public. Let me share just two examples.

I have witnessed time and again, in states that have contested judicial elections, campaign advertising that suggests the outcome in cases will be different depending on which candidate prevails. An uninformed person would naturally conclude that judges are free to impose their own views in reaching decisions and are not obligated to follow the rule of law. In the past, a good deal of this advertising was paid for by partisan or special-interest groups that supported a particular candidate. Now that judicial candidates have been told by the United States Supreme Court that they have a First Amendment right to share their thoughts about issues that are litigated, and may well come before them, I expect to see more of this type of advertising from candidates' campaign committees.

Recently, in a number of states that appoint their judges where courts have made unpopular constitutional decisions, responses from some members of the legislature have included pleas for the public to use the next retention election as an opportunity to boot the judges responsible for the decision from office. They have also introduced legislation that would strip the courts of their rule -making authority and bills calling for a constitutional amendment to change the method of judicial selection. No mention is made by these legislators that in our system of government, when actions by the legislative and executive branches are called into question, the responsibility of determining the constitutionality of these actions falls squarely on the judiciary and it must make its decision without regard to popular opinion. …