A Conversation about JUDICIAL INDEPENDENCE and IMPARTIALITY
Following the presentation of the Second Annual Dwight D. Opperman Award for Judicial Excellence to Arizona Chief Justice Ruth McGregor on September 19, 2005, the chief justice participated in a discussion of judicial independence and impartiality with U.S. Supreme Court Justice Sandra Day O'Connor and the 2004 Opperman Award recipient Wisconsin Chief Justice Shirley Abrahamson. Here is an edited version of their conversation.
Chief Justico Ruth McGregor: When we talk about judicial independence and judicial impartiality, we're really speaking both of the need for individual judges to make decisions impartially, free from political or other outside influence, and of the independence of the judicial branch to operate as a separate and co-equal branch of government. The two concepts are often intertwined and interdependent, and when I separate them I will refer to independent decision making as judicial impartiality and judicial branch separateness as judicial independence.
Justice O'Connor, you have written that the first critical safeguard in the American system is the independence of the judiciary. Why the concern about judicial impartiality and independence? What's the downside if we limit or lose them?
Justice Sandra Day D'Connor We have to go back to basics. I think it's elementary high school civics that we have three branches of government that regulate each other by a complicated system of checks and balances, and the main check that the judicial branch has on the others is the power to declare statutes or executive acts unconstitutional, although sometimes we act in softer ways by interpreting the statute in light of constitutional values or by ruling that some regulation or executive act is not authorized by statute.
But whatever courts do, we have the power to make the president or Congress or, at the state level, a governor or a state legislature really angry. In fact, if we don't make them mad some of the time we probably aren't doing our jobs.
Our effectiveness as judges relies on the knowledge that we will not be subject to retaliation for our judicial acts. Now, as James Madison put itand we call him the father of the Constitution, so he ought to carry some weight-an independent judiciary is an impenetrable bulwark against every assumption of power in the legislative or executive.
Well, the word "impenetrable" may be putting it a bit strongly, but if you believe, as Madison and I do, that the courts are important guardians of constitutionally guaranteed freedoms in our common law system, you know the system breaks down without judicial independence. Independence is tremendously hard to create, and it's easier than most people imagine to destroy.
I think that's why the building where I work features a larger-than-life statue of John Marshall, who spent 35 years trying to nurture a culture where the political branches were, by and large, willing to acquiesce in the judicial branch's interpretation of the law.
Now, they don't always acquiesce, but fortunately most of the time politicians don't challenge the courts to enforce their judgments themselves, as Andrew Jackson did after the Supreme Court's decision in Worcester v. Georgia.
It's been very heartening to see judicial independence take root in some of the countries that formed after the breakup of the Soviet Union. I really am excited that that has occurred. But at the same time, we're seeing some threats to it in our own country.
McGregor: Justice Abrahamson, turning to judicial impartiality, this isn't the first time in history that one group or another has tried to limit judicial impartiality. What do you see as the types and sources of these threats and are they really different from efforts made in the past to limit the ability of judges to judge impartially?
Chief Justice Shirley Abrahamson: Well, the sources can be, as Justice O'Connor said, the executive and legislative branches. …