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Judicial Independence: Talking Points

1. Constitutional Protections and Political Debates

A central principle of the United States system of government holds that judges should be able to reach decisions free from political pressure. The framers of the Constitution shared a commitment to judicial independence, and they organized the new government to ensure that federal judges would have a proper measure of independence from the executive and legislative branches. The Constitution guaranteed that judges would serve "during good behavior" and would be protected from any reduction in their salaries, thus preventing removal by a President who opposed their judicial philosophy and congressional retaliation against unpopular decisions. These twin foundations of judicial independence were well established in the British judicial system of the eighteenth century and had been enacted by many of the new state constitutions following independence from Great Britain. But the constitutional outline for the judiciary also ensured that the court system would always be subject to the political process and thus to popular expectations. The Constitution's provision for "such inferior courts as the Congress may from time to time ordain and establish," granted the legislative branch the most powerful voice in deciding the structure and jurisdiction of the nation's court system. The appointment of judges by the President, with the advice and consent of the Senate, further ensured that important aspects of the judiciary would be part of the political process. The inherent tension between provisions for judicial independence and the elected branches' authority to define the court system has led to recurring debates on judicial tenure and the federal courts' jurisdiction.

Throughout United States history, unpopular court decisions and the general authority of the federal judiciary have prompted calls to limit judges' terms of office, to define more narrowly the jurisdiction of the federal courts, or to limit judicial review-the courts' authority to determine the constitutionality of laws. Underlying the debates on judicial independence have been basic questions about the proper balance of Congress's authority to define the court system and the need to protect a judge's ability to reach decisions independent of political pressure. The debates have also addressed the extent to which the judiciary should be independent of popular opinion in a system of government where all power is based on the consent of the governed. Other debates have raised the need for safeguards for judicial independence in addition to those provided by the Constitution.

2. Debates on the Constitution

The delegates to the Constitutional Convention accepted with little debate the provisions for service during good behavior and for protected salaries. Only during the ratification debates in the states did political writers more fully explore the Constitution's definition of judicial independence. The most famous commentary came in The Federalist essays of Alexander Hamilton, who argued that "the complete independence of the courts of justice is peculiarly essential in a limited Constitution," by which he meant a Constitution that placed limits on the authority of all government officeholders. The judiciary's responsibility, according to Hamilton, was to enforce the people's will as expressed in the Constitution and thus to prevent the abuse of power by the executive and especially the legislature. "Permanent tenure" was the most important foundation of the courts' role as "bulwarks . . . against legislative encroachments."

A prominent Anti-Federalist critic of the Constitution acknowledged the importance of judicial independence as secured by service during good behavior, but "Brutus" also recognized that the judicial independence envisioned by the Constitution was unprecedented. Judges would be removable only by impeachment and conviction of "high crimes and misdemeanors" rather than by a vote of the legislature, as was the case in most other governments with judicial tenure during good behavior. "Brutus" warned that regardless of errors of judgment or inability to carry out their duties, federal judges would be "independent of the people, of the legislature, and of every power under heaven." He also worried that these largely unaccountable judges would have the final say on the meaning of the Constitution, but Hamilton and other framers of the proposed government thought that the courts' responsibility to determine the constitutionality of laws, and thus to protect individual rights, was precisely the reason for the extraordinary protections of judicial independence. Hamilton dismissed concerns about unchecked judicial power, since the courts had "no influence over either the sword or the purse."

3. Political Parties and the Federal Courts

The framers' hopes for judicial independence were quickly challenged by the unexpected emergence of political parties in the 1790s. By the end of the decade, nominations of judges and any legislation relating to the courts became intertwined with the intense political struggle between Federalists and Republicans. After passage of the Sedition Act of 1798, Federalists used prosecutions in the federal courts to silence political opposition, and in 1801 the Federalist majority in Congress expanded federal jurisdiction at the expense of state courts and created new courts with additional judgeships that were filled by the lame-duck President, John Adams. Republicans came into power soon thereafter determined to curb what they saw as the partisan bias of federal judges. The Republican Congress abolished the new courts and judgeships and impeached two highly partisan judges. Republicans argued that the Constitution granted Congress full authority to establish the judicial system and that the constitutional protections of tenure during good behavior and undiminished salary did not prevent Congress from abolishing courts that were no longer needed. Republicans also argued that the partisan actions of Federalist judges, particularly in the Sedition Act prosecutions, had undermined all pretense of impartiality and judicial independence. Federalists meanwhile decried what they saw as an assault on the constitutional guarantee of tenure during good behavior. The Constitution, they declared, made the judges independent so as "to control the fiery zeal, and to quell the fierce passions" of a newly elected party. Repeal of the Judiciary Act of 1801 and the precedent of depriving judges of their office, Federalists warned, would render all judges the tools of political parties and bring about the collapse of constitutional government.

Despite the private doubts of Chief Justice John Marshall and other justices, the Supreme Court in 1803 issued a decision that let stand the law abolishing the courts and judgeships established in 1801. Republican fears about the judiciary were heightened, however, by the Supreme Court's decision one week earlier, in which Chief Justice Marshall, in Marbury v. Madison, asserted the judiciary's right to declare an act of Congress unconstitutional and, more alarming to Republicans, the Court's authority to compel executive compliance with an act of Congress. After the Senate failed to convict Supreme Court Justice Samuel Chase in his impeachment trial of 1805, a truce of sorts fell into place as Republicans abandoned their impeachment plans and the most overtly partisan Federalist judges, like Chase, curtailed their political activity. The temporary lull in public debates, however, did not signify a consensus on the proper measure of judicial independence. Throughout the early decades of the nineteenth century, unpopular decisions in the Supreme Court and, more often, in the federal trial courts, sparked recurring demands for restricting judicial tenure or limiting federal jurisdiction. Thomas Jefferson, as President and during his long retirement, advocated fixed, renewable terms of office for federal judges. Jefferson asserted that with impeachment the only means of removal, the judges "consider themselves secure for life; they skulk from responsibility to public opinion." Members of Congress and the majorities of several state legislatures repeatedly called for restrictions on the authority of federal courts to review the decisions of state courts or an end to federal jurisdiction over suits between residents of different states. Others submitted amendments to allow for the removal of judges on the vote of super-majorities in Congress or to place age limits on judicial service. None of these proposals succeeded, but their introduction into nearly every Congress before the Civil War indicated that judicial independence remained a subject of political debate.

4. An Independent Judiciary in a Reconstructed Union

The crisis of union surrounding the Civil War brought new challenges to judicial indendence. Unionists and supporters of the anti-slavery movement were highly suspicious of the federal courts because of decisions in support of slavery and particularly because of the Supreme Court's 1857 Dred Scott decision, which, among other things, denied all African Americans any rights under the Constitution. Following the close of the Civil War, Republicans in Congress feared that the federal courts would disallow much of their ambitious legislation designed to ensure full citizenship rights for freed slaves and all other African Americans. Congress debated numerous proposals to strip the federal courts of specific jurisdiction and to reorganize the courts. Congress redrew circuit boundaries to ensure that Southern states would no longer hold a majority of seats on the Supreme Court. In 1868, the Congress repealed the Supreme Court's jurisdiction over appeals of habeas corpus petitions, thus preventing former Confederates from challenging the custody of military courts. The House of Representatives in 1868 approved legislation that would have required a majority of seven justices for the Supreme Court to disallow any congressional statute, although the Senate Committee on the Judiciary failed to report the bill.

The willingness of Congress to reorganize the judiciary and to restrict jurisdiction in pursuit of the goals of Reconstruction was counter-balanced by the congressional Republicans' reliance on the federal courts to enforce federal law in the former Confederate states. In 1869, Congress established nine circuit judgeships in the hope, as expressed by Senator Lyman Trumbull, that "nothing would do more to give quiet and peace to the southern country than an efficient enforcement of the laws of the United States in the United States courts." In 1875, Congress extended federal jurisdiction to encompass all cases arising under the Constitution and federal law, so that by the close of Reconstruction in 1877 the federal courts had unprecedented authority and independence.

5. The Federal Courts and the Politics of an Industrial United States

The most sustained effort to make federal judges more directly accountable to public opinion and to the elected branches of government arose between the 1890s and the 1920s when the federal courts became involved in labor struggles and in debates over government regulation of the economy. The federal courts' approval of injunctions to halt labor strikes and the Supreme Court's disallowance of regulatory legislation contributed to support for various restrictions on judicial authority. Populists seeking to regulate railroad shipping rates, labor unions trying to establish the right to strike, and Progressives defending their extensive program of social welfare and regulation of corporations all in turn advocated legislation to restrict the jurisdiction of the federal courts or to make judges more responsive to shifts in public opinion. The most common proposals included the election of federal judges, fixed judicial terms, narrow limits on federal jurisdiction, and the abolition of judicial review or requirements for a super-majority of the Supreme Court to invalidate federal or state laws. For nearly thirty years, Justice Walter Clark of the North Carolina Supreme Court cultivated national support for the election of federal judges and limits on judicial review. Senator George Norris of Nebraska personally favored the abolition of the lower federal courts and introduced more widely supported bills to restrict judicial review, impose fixed terms on judges, and strip the courts of authority to issue labor injunctions. In 1924, Senator Robert LaFollette, the Progressive Party candidate for President, proposed a constitutional amendment that would have prohibited the lower federal courts from invalidating any congressional statute and would also have authorized Congress to reenact any legislation overturned by the Supreme Court.

Although the House of Representatives Committee on the Judiciary in 1894 reported a bill to limit judges to 10-year terms, few of the proposals to limit judicial independence gained much ground in Congress over the next 40 years, and the diverse critics of the courts never unified behind a common program. The critique of the federal courts, however, was steady and became an important part of the broader public debates on the effectiveness of government in a time of rapid social and economic change. The proposals to limit the authority of the federal judiciary paralleled the movement in the states to subject local judges to recall by popular vote. Throughout the early decades of the twentieth century, the defense of the existing judicial system was led by the organized bar, especially the American Bar Association. Defenders of tenure during good behavior and judicial review warned that a judiciary beholden to public opinion would never be able to protect civil liberties and economic rights. William Howard Taft, as President, then as dean of Yale Law School, and after 1921 as Chief Justice of the United States, was an important advocate for the established protections of judicial independence. Taft conceded that the federal courts would always be subject to popular criticism because their role was to protect "the guaranties of personal liberty . . . against the partisan zeal of the then majority."

6. "Court Packing" and the Defense of Judicial Independence

After several years of Supreme Court decisions that challenged key New Deal programs, President Franklin Roosevelt in 1937 proposed a sweeping change in the appointment of all federal judges. Never in United States history had a proposal about the judiciary excited such political debate. The Judicial Reorganization bill would have authorized the President to appoint an additional judge whenever a sitting judge on any federal court did not retire within six months of reaching the age of 70. If approved, the bill would have allowed Roosevelt to appoint immediately as many as 50 new federal judges, including six Supreme Court justices. Roosevelt alleged that the declining abilities of aging judges contributed to a backlog of cases, but he also argued that a regular appointment of new judges was necessary "to bring to the decision of social and economic problems younger men who have had personal experience and contact with modern facts and circumstances under which average men have to live and work."

For months, the judiciary proposal dominated public debate throughout the nation. While many New Dealers supported the bill, defections from Roosevelt's own party doomed the legislation and led the Senate Committee on the Judiciary to recommend that the bill not pass. The Senate committee report described the bill as "an invasion of judicial power such as has never been attempted in this country" and warned that the bill would set a dangerous precedent allowing a Congress or a President to impose constitutional beliefs on the courts. While some attributed the lack of support to the Supreme Court's recent willingness to uphold New Deal legislation (the so-called "switch in time that saved nine"), the opposition to Roosevelt's bill rested on fundamental beliefs about the independence of the judiciary. Roosevelt had clearly challenged a widely shared, popular commitment to the balance of power between the branches of government. Even older Progressives who had supported limited tenure for judges and restrictions on federal jurisdiction shied away from what they saw as Roosevelt's attempted power grab for the executive branch. The administration drafted a revised bill, but that too met with opposition, and the Senate never voted on it. The retirement of Supreme Court justices soon gave Roosevelt the opportunity to appoint a majority of that court, but the court-packing crisis in many ways strengthened support for an independent judiciary and discouraged further proposals for any comprehensive reorganization of the judiciary.

7. The Persistence of Court Critics

Despite greater public acknowledgment of the principle of judicial independence in the years following the New Deal, critics of federal court decisions continued to call for limits on federal jurisdiction or for changes in judicial tenure. In the 1950s, in response to Brown v. Board of Education and subsequent court enforcement of school desegregation, segregationists advocated various measures to deprive federal courts of jurisdiction over issues related to local schools. In the 1960s, a series of Supreme Court decisions on the rights of criminal defendants, school prayer, and reapportionment of congressional seats fueled a campaign to impeach Chief Justice Earl Warren. To this day, controversial court decisions are often followed by proposals to "strip" the federal courts of specific jurisdiction or even challenges to judicial tenure during good behavior. Like similar proposals dating back 200 years, few have gained serious congressional consideration.

8. Institutionalization of Judicial Independence

Over the course of the twentieth century, judicial independence was greatly strengthened by the development of institutions for the federal courts' self governance. In an address to the American Bar Association in 1914, William Howard Taft recognized that widespread public criticism of the courts imposed on judges and lawyers the responsibility to ensure a court system worthy of public respect. Taft became a leader in the development of institutions that have allowed the judiciary to govern itself and to guarantee the public a fair and efficient system of justice. Through much of the country's history, the courts received administrative support from various departments of the executive branch. Taft's support for the establishment in 1922 of a conference of chief judges from each circuit was the first step toward independent judicial administration. In 1939, Congress established the Administrative Office of the U.S. Courts, which reported to the conference of judges and provided courts with the support formerly given by the Department of Justice. The congressional act of 1939 also established in each circuit judicial councils with responsibility for improving the administration of all courts within the circuit. The establishment of the Federal Judicial Center in 1967 gave the federal courts their own agency for education of judges and court staff and for research on improving judicial administration.

9. Public Trust

As Taft recognized in the early decades of the twentieth century, the independence of the judiciary depends not only on the constitutional protections of judges, but also on public faith in a fair and responsive court system. The debates on Roosevelt's court-packing plan revealed that public trust in the judiciary was also based on confidence that the federal courts would not be dominated by another branch of government or by one political party. Critics of judicial independence have always been part of political life in the United States, but in the 200 years following the debates between Federalists and Republicans, the changing majorities in Congress have been reluctant to endorse sweeping changes in the federal judiciary, especially in response to specific court decisions or to further partisan policy.