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Judicial Independence: Historical Documents

1. Alexander Hamilton, The Federalist No. 78

If then the courts of justice are to be considered as the bulwarks of a limited constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges, which must be essential to the faithful performance of so arduous a duty.

This independence of the judges is equally requisite to guard the constitution and the rights of individuals from the effects of those ill humours which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information and more deliberate reflection, have a tendency in the mean time to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.

. . . That inflexible and uniform adherence to the rights of the constitution and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would in some way or other be fatal to their necessary independence. If the power of making them was committed either to the executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the constitution and the laws.

[Document Source: The Debate on the Constitution , ed. Bailyn, 471-74.]

2. Letters of "Brutus," XV

The judges in England are under the controul of the legislature, for they are bound to determine according to the laws passed by them. But the judges under this constitution will controul the legislature, for the supreme court are authorised in the last resort, to determine what is the extent of the powers of the Congress; they are to give the constitution an explanation, and there is no power above them to sit aside their judgment. The framers of this constitution appear to have followed that of the British, in rendering the judges independent, by granting them their offices during good behaviour, without following the constitution of England, in instituting a tribunal in which their errors may be corrected; and without adverting to this, that the judicial under this system have a power which is above the legislative, and which indeed transcends any power given to a judicial by any free government under heaven.

I do not object to the judges holding their commissions during good behaviour. I suppose it a proper provision provided they were made properly responsible. But I say, this system has followed the English government in this, while it has departed from almost every other principle of their jurisprudence, under the idea, of rendering the judges independent; which, in the British constitution, means no more than that they hold their places during good behaviour, and have fixed salaries, they have made the judges independent, in the fullest sense of the word. There is no power above them, to controul any of their decisions. There is no authority that can remove them, and they cannot be controuled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.

[Document Source: The Debate on the Constitution , ed. Bailyn, 372-78.]

3. Joseph Nicholson on Repeal of the Judiciary Act of 1801

Our doctrine is, that every Congress has a right to repeal any law passed by its predecessors, except in cases where the Constitution imposes a prohibition. We have been told that we cannot repeal a law fixing the President's salary, during the period for which he was elected. This is admitted, because it is so expressly declared in the Constitution; nor is the necessity so imperious, because, at the expiration of every four years, it is in the power of Congress to regulate it anew, as their judgments may dictate. Neither can we diminish the salary of a judge so long as he continues in office, because in this particular the Constitution is express likewise; but we do contend that we have an absolute, uncontrolled right to abolish all offices, which have been created by Congress, when in our judgment those offices are unnecessary, and are productive of a useless expense.

. . . If the feelings and interests of the nation require that new laws should be enacted, that existing laws should be modified, or that useless and unnecessary laws should be repealed, they [the people] have reserved this power to themselves by declaring that it should be exercised by persons freely chosen for a limited period to represent them in the National Legislature. On what ground is it denied to them in the present instance? By what authority are the judges to be raised above the law and above the Constitution? Where is the charter which places the sovereignty of this country in their hands? Give them the powers and the independence now contended for, and they will require nothing more; for your Government becomes a despotism, and they become your rulers. They are to decide upon the lives, the liberties, and the property of your citizens; they have an absolute veto upon your laws by declaring them null and void at pleasure; they are to introduce at will the laws of a foreign country, differing essentially with us upon the great principles of government; and after being clothed with this arbitrary power, they are beyond the control of the nation, as they are not to be affected by any laws which the people by their representatives can pass. If all this be true; if this doctrine be established in the extent which is now contended for, the Constitution is not worth the time we are spending upon it. It is, as it has been called by its enemies, mere parchment. For these judges, thus rendered omnipotent, may overlap the Constitution and trample on your laws; they may laugh the Legislature to scorn, and set the nation at defiance.

[Document Source: Annals of Congress , 7th Cong., 1st sess., 818, 823-24.]

4. James A. Bayard on Repeal of the Judiciary Act of 1801

Let me now suppose, that in our frame of government the judges are a check upon the Legislature; that the Constitution is deposited in their keeping. Will you say afterwards that their existence depends upon the Legislature? . . . A check must necessarily imply a power commensurate to its end. The political body designed to check another must be independent of it, otherwise there can be no check. What check can there be when the power designed to be checked can annihilate the body which is to restrain it?

. . . If your judges are independent of political changes, they may have their preferences, but they will not enter into the spirit of party. But let their existence depend upon the support of the power of a certain set of men and they cannot be impartial. Justice will be trodden under foot. Your courts will lose all public confidence and respect. The judges will be supported by their partisans, who in their turn will expect impunity for the wrongs and violence they commit. The spirit of party will be inflamed to madness; and the moment is not far off when this fair country is to be desolated by civil war.

. . . The independence of the Judiciary was the felicity of our Constitution. It was this principle which was to curb the fury of party upon sudden changes. The first moments of power, gained by a struggle, are the most vindictive and intemperate. Raised above the storm, it was the Judiciary which was to control the fiery zeal, and to quell the fierce passions of a victorious faction.

[Document Source: Annals of Congress , 7th Cong., 1st sess., 648-50.]

5. Thomas Jefferson to James Pleasants, December 26, 1821

A better remedy I think, and indeed the best I can devise would be to give future commissions to judges for six years (the Senatorial term) with a re-appointability by the president with the approbation of both houses. That of the H. of Repr. imports a majority of citizens, that of the Senate a majority of states, and that of both a majority of the three sovereign departments of the existing government, to wit, of it's Executive & legislative branches. If this would not be independence enough, I know not what would be such, short of the total irresponsibility under which they are acting and sinning now. The independence of the judges in England on the King alone is good; but even there they are not independent on the Parliament; being removable on the joint address of both houses by a vote of a majority of each, but we require a majority of one house and 2/3 of the other, a concurrence which, in practice, has been and ever will be found impossible; for the judiciary perversions of the constitution will forever be protected under the pretext of errors of judgment, which by principle, are exempt from punishment. Impeachment therefore is a bug bear which they fear not at all. But they would be under some awe of the canvas of their conduct which would be open to both houses regularly every 6th year. It is a misnomer to call a government republican, in which a branch of the supreme power is independent of the nation.

[Document Source: The Thomas Jefferson Papers , Series I, General Correspondence, 1651-1827, Library of Congress Manuscripts Division. (Available at )]

6. In Support of an Elected Federal Judiciary, by Walter Clark, North Carolina Supreme Court, 1903

Probably the most serious defect in the Federal Constitution is the retention unaltered of the mode for the selection of the Federal judges at third hand through the instrumentality of the Executive and the Senate, and for life. In truth no provision could be more undemocratic than the manner of selecting these important officials and their life tenure. They are chosen in a manner that entirely negatives any expression of public opinion, and that permits their selection by powerful influences that usually have ready access to the appointing power. This is an anomaly in a country whose government is based upon the principle that it exists only by the consent of the governed. The power that has been assumed and maintained by the judiciary to set aside the action of the legislative and executive departments was unknown when the Constitution was adopted, and it has become vitally necessary, if such power shall remain, as is probable, in the judiciary, that the judiciary shall at least be selected by the same element that chooses the Federal legislature; otherwise the will of the people is at the mercy of officials who are under no control and are not selected by the popular will. It is due mainly to the high personal character of most of the gentlemen who have occupied the Federal bench that this anachronism has not met with a stronger and more universal demand for its removal. The fact that nearly every State in the Union has made its judiciary elective by the people proves that the mature judgment and the deliberate will of the people of the United States upon this subject are well-nigh overwhelming.

[Document Source: Walter Clark, "Law and Human Progress," American Law Review 37 (1903): 512-29.]

7. William Howard Taft, Address to the American Bar Association, 1914

The agitation with reference to the courts, the general attacks upon them, the grotesque remedies proposed of recall of judges and recall of judicial decisions, and the resort of demagogues to the unpopularity of courts as a means of promoting their own political fortunes, all impose upon us, members of the Bar and upon judges of the courts and legislatures, the duty to remove, as far as possible, grounds for just criticism of our judicial system. The federal system extends into every state. It is under the control of one legislature and subordinate to one Supreme Court. Here is the opportunity to furnish to the country a model which shall inspire state legislatures and state Supreme Courts to similar efforts to make their courts the handmaid of prompt justice.

[Document Source: Report of the Thirty-seventh Annual Meeting of the American Bar Association , Baltimore: Lord Baltimore Press, 1914, 359-84.]

8. William Howard Taft on Judicial Independence, 1923

From time to time, by reason of its jurisdiction and a proper exercise of it, the Court can not help becoming the stormy petrel of politics. It is the head of the system of Federal Courts established avowedly to avoid the local prejudice which non-residents may encounter in State Courts, a function often likely to ruffle the sensibilities of the communities, the possibility of whose prejudice is thus recognized and avoided. More than this, the Court's duty to ignore the acts of Congress or of the State Legislatures, if out of line with the fundamental law of the Nation, inevitably throws it as an obstruction across the path of the then majority who have enacted the invalid legislation. The stronger the majority, and the more intense its partisan feeling, the less likely is it to regard constitutional limitations upon its power, and the more likely is it to enact laws of questionable validity. It is convincing evidence of the sound sense of the American People in the long run and their love of civil liberty and its constitutional guaranties, that, in spite of hostility thus frequently engendered, the Court has lived with its powers unimpaired until the present day.

[Document Source: "Dedication of Memorial to Chief Justice Salmon Portland Chase," American Bar Association Journal , 9 (1923): 347-52.]

9. President Franklin D. Roosevelt, Message to Congress presenting a plan for the Reorganization of the Judicial Branch of Government, February 5, 1937

Modern complexities call also for a constant infusion of new blood in the courts, just as it is needed in executive functions of the Government and in private business. A lowered mental or physical vigor leads men to avoid an examination of complicated and changed conditions. Little by little, new facts become blurred through old glasses fitted, as it were, for the needs of another generation; older men, assuming that the scene is the same as it was in the past, cease to explore or inquire into the present or the future. . . . Life tenure of judges, assured by the Constitution, was designed to place the courts beyond temptations or influences which might impair their judgments: it was not intended to create a static judiciary. A constant and systematic addition of younger blood will vitalize the courts and better equip them to recognize and apply the essential concepts of justice in the light of the needs and the facts of an ever-changing world.

It is obvious, therefore, from both reason and experience, that some provision must be adopted, which will operate automatically to supplement the work of older judges and accelerate the work of the court.

I, therefore, earnestly recommend that the necessity of an increase in the number of judges be supplied by legislation providing for the appointment of additional judges in all federal courts, without exception, where there are incumbent judges of retirement age who do not choose to retire or to resign. If an elder judge is not in fact incapacitated, only good can come from the presence of an additional judge in the crowded state of the dockets; if the capacity of an elder judge is in fact impaired, the appointment of an additional judge is indispensable.

[Document Source: The Public Papers and Addresses of Franklin D. Roosevelt . 1937 Volume: The Constitution Prevails. New York: Macmillan Company, 1941, 51-66.]

10. Senate Judiciary Committee, Adverse Report on Roosevelt's Proposed Reorganization of the Federal Judiciary, June 1937

It is essential to the continuance of our constitutional democracy that the judiciary be completely independent of both the executive and legislative branches of the Government, and we assert that independent courts are the last safeguard of the citizen, where his rights, reserved to him by the express and implied provisions of the Constitution, come in conflict with the power of governmental agencies. . . .

The condition of the world abroad must of necessity cause us to hesitate at this time and to refuse to enact any law that would impair the independence of or destroy the people's confidence in an independent judicial branch of our Government. We unhesitatingly assert that any effort looking to the impairment of an independent judiciary of necessity operates toward centralization of power in the other branches of a tripartite form of government. We declare for the continuance and perpetuation of government and rule by law, as distinguished from government and rule by men, and in this we are but reasserting the principles basic to the Constitution of the United States. . . .

The whole bill prophesies and permits executive and legislative interferences with the independence of the Court, a prophecy and a permission which constitute an affront to the spirit of the Constitution. . . .

If interference with the judgment of an independent judiciary is to be countenanced in any degree, then it is permitted and sanctioned in all degrees. There is no constituted power to say where the degree ends or begins, and the political administration of the hour may apply the essential "concepts of justice" by equipping the courts with one strain of "new blood," while the political administration of another day may use a different light and a different blood test. Thus would influence run riot. Thus perpetuity, independence, and stability belonging to the judicial arm of the Government and relied on by lawyers and laity, are lost. Thus is confidence extinguished.

[Document Source: Senate Committee on the Judiciary, Reorganization of the Federal Judiciary , 75th Cong., 1st sess., 1937, S. Rep. 711.]