Academic journal article Fordham Urban Law Journal

The Ethical Foundations of American Judicial Independence

Academic journal article Fordham Urban Law Journal

The Ethical Foundations of American Judicial Independence

Article excerpt

Our Constitution ... [and] Bill of Rights ... [contain] protections of individual rights ... [I]mportant as these guarantees are, by themselves they were not a uniquely American contribution to the art of government. Long before them England had produced the Magna Carta, the Petition of Right, and the Declaration of Rights. Simultaneously with them in France there was the Declaration of the Rights of Man.

The uniquely American contribution consisted of the idea of placing these guarantees in a written constitution which would be enforceable by an independent judiciary. This idea that the rights guaranteed by the Constitution would be enforced by judges who were independent of the executive was something found in no other system of government at that time. It was a unique American contribution to the theory and practice of government.

--Chief Justice William H. Rehnquist (1)


When one thinks of the independence (2) of the American judiciary, the mind focuses first on federal courts. There have been many pivotal cases in which independent judges stood against the tides of public opinion or the power of the legislative and executive branches. The role of the federal courts in ending segregation, (3) holding presidents accountable, (4) according women equal treatment, (5) and protecting the rights of the accused (6) come to mind.

Most lawyers and many citizens could recall the federal constitutional bases for judicial independence. Article III mandates that positions be filled through appointment by the President and confirmation by the Senate. (7) That formidable selection process almost invariably ensures that federal judges are intelligent, well educated, and professionally experienced. Those qualities are conducive to judicial independence. In addition, federal judges enjoy the following constitutional guarantees: life tenure during good behavior, (8) non-reducible compensation, (9) and removal only through impeachment. (10) These protections free federal judges from the need to behave in politically advantageous ways in order to keep their positions. (11) They also insulate judges from retribution when they make unpopular decisions. (12)

State judges may be less independent than their federal counterparts. Indeed, it has been remarked that "The state court house is, if anything, too close to the state legislative house...." (13) In many states, particularly those where judges are elected at some or all levels, (14) the screening process can be considerably less rigorous than in the federal courts. (15) Elections are frequently decided not by qualifications (about which the voting public often knows little) but by advertising. Campaign contributions that buy advertising undermine judicial independence (16) by clouding the exercise of judicial judgment with considerations related to financial obligation. (17) Also, state judges typically must win re-appointment or re-election on a relatively frequent basis, (18) sometimes every four or six years. (19) With the shadow of the next campaign looming, it can be hard to focus on doing what is right under the law and the facts, rather than doing what is popular.

There are other obstacles to state judicial independence. The financial provisions for state judicial service and retirement are sometimes inadequate to attract or retain well qualified judges. (20) Controversial rulings may result in legislatures withholding salary increases or reducing appropriations for the judicial system as a whole. (21) And criticism fueled by single-issue politics may cause good judges to be swept from office by elective or appointive authorities, or to voluntarily resign. (22) Indeed, in some recent instances, judges have even been threatened with physical violence because of their decisions. (23) It has also been argued that state systems imposing mandatory retirement based on age (24) threaten judicial independence. …

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