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October 2006

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This article is in the news archives --- for current news go to the Third Branch News.


In-Depth: On The Importance Of Having A Fair And Independent Judiciary

For two days in September, state and U.S. Supreme Court justices with nationally recognized leaders in law, government, business, journalism, academia, and the nonprofit sector discussed the independence of the nation’s courts.

Georgetown Law and the American Law Institute co-sponsored “Fair and Independent Courts: A Conference on the State of the Judiciary,” on September 28-29, 2006. Retired Justice Sandra Day O’Connor and Justice Stephen Breyer chaired the conference.

Organizers convened the conference “to promote discussion about the preservation of federal and state courts’ tradition of independence,” an independence seen threatened by partisan confirmation battles, calls for impeachment or recall following unpopular decisions, and public opinion polls revealing resentment of “judicial activism.”

The following are excerpts from their remarks. Transcripts and web casts of much of the proceedings are available at http://www.law.georgetown.edu/judiciary/program.html

Chief Justice John G. Roberts Jr., Justice Stephen Breyer and retired Justice Sandra Day O’Connor delivered key speeches during the conference. Their remarks are excerpted.

Chief Justice John G. Roberts, Jr:

“The topic of this conference, judicial independence, is far less an abstraction for me today than it was a year ago. Let me tell you why. Just about every week at the court, we have a delegation of judges or justices from an emerging democracy around the world, judges who, in many cases, the threat to judicial independence is often a threat to their physical safety, certainly to their well-being. And yet, they are striving to establish an independent Judiciary that can defend the rule of law in their country. They come to our country, and they come to the Supreme Court because they draw inspiration from the role and stature of the Third Branch in our democracy.


Now, before going any further, I think I ought to be very clear about what judicial independence is not. It is not immunity from criticism. You don’t have to agree completely with H.L. Mencken’s definition of a judge, a law student who marks his own examination papers. (Laughter) But there is a germ of truth in it, and our examination papers though are at least open for criticism and grading by the public at large. They’re there for all to see, and informed criticism is certainly welcome. But it should not degenerate into attack on individual judges for the decision as a means of intimidation, and it should not take the form of institutional retribution, action against the Judiciary as a whole, that might inhibit the judges from performing their vital function.

. . . Judging is no different than any other form of human endeavor in this respect—we recognize that with independence come certain responsibilities. If the federal Judiciary is to ward off dangerous intrusions by other branches such as the Inspector General bill that was passed by the House Judiciary Committee yesterday, we must show that we are capable of managing our own house.

There is a final responsibility that comes with judicial independence, one that I think President Reagan captured perfectly 25 years ago this week, a good week for him, the week that his first Supreme Court nominee was confirmed unanimously and took the oath of office. At a reception for judges in the White House, President Reagan said that the Judiciary’s, quote, “commitment to the preservation of our rights often requires the lonely courage of a patriot.” Those words have stuck with me since I heard them. And to the extent that attacks on judicial independence emanate from conservative quarters, I would commend to those quarters those words from the leading conservative voice of our time, “the lonely courage of a patriot.” President Reagan recognized that it was the job of judges to make unpopular decisions; unpopular with the populace at large, unpopular with particular social or professional elites. But he also recognized that the courage required of them was the courage of a patriot because in making those unpopular decisions, they were fulfilling the framers’ vision of a society governed by the rule of law.

I began by noting that Monday was Justice O’Connor’s 25th anniversary of taking the oath of office on the court. As Mr. [Charlie] Rose has mentioned, tomorrow I will celebrate my first. And as we begin another Supreme Court term, I am confident that the justices and the judges around the country will not be found lacking in the courage that President Reagan indicated is often required in discharging their responsibilities. And through conferences such as this, I hope that courage may be a little less lonely than President Reagan indicated.”

Justice Stephen Breyer:

“. . . what Hamilton is saying is that the Constitution is a Constitution of limitations. It is a Constitution where nobody becomes too powerful. It’s a Constitution where we have a democracy, but it’s a certain kind of democracy that protects human liberty, and a degree of equality, and a rule of law, and separation of powers, and federalism. Nobody gets all the power in the United States of America. And those are limitations.

And we all know, as he knew, that the majority can oppress the minority. And we all know that there are lots of minorities, and we all could be minorities in one respect or another. And so he thought that the judges are the way to make sure that those constitutional protections for the minority against oppression means something. And, anyone who remembers Brown v. Board of Education knows that that made a difference.

Now, roll the clock forward . . . until a case I just think is a marvelous case, Cooper v. Aaron, decided after Brown v. Board of Education, and that was the case that involved for some of us old enough to remember—and I do remember—Governor Orville Faubus standing in the schoolhouse door in Little Rock saying, “I’m an elected governor. I don’t care what those judges say; I have the state militia, and me and the state militia are not going to let this school be integrated. No.”

All nine judges of the Supreme Court personally signed that decision. You could have had 900. You could have had 9,000. It was Governor Faubus, with the militia, standing in the door that stopped those children from going in. The President of the United States, Dwight Eisenhower, then decided to send the paratroopers, and he did. He sent the airborne division. They went to Little Rock. They took those black children by the hand—and I can remember it—and they walked with them into that white schoolhouse door. What a victory that was, not just for integration—that was part of it—not just for the children, but for everybody because that was an enormous victory for the rule of law in America.

Let’s take any really, really, really contentious case that the courts decided in the last few years since I’ve been there. Would you like Bush v. Gore? Would you like school prayer? Abortion? Well, you think those cases are not contentious? No, you don’t. You live in this world, where I live. Of course they are. People feel strongly. Why shouldn’t they?

. . . They’re affected by those cases in the outcome. They feel very strongly about it. And at least half of them think that the majority is wrong each time.

And maybe they are. I mean, these are not easy cases. You’re dealing with a kind of not clear Constitution on such issues, where, in fact, as I say, there are three or four arguments each way. And it’s hard. And, it’s not surprising that people divide. But think of how angry the average person is as a result of those cases, and now think about—I like to say, remark upon—that which is, to me, the remarkable . . . .

No paratroopers. None. No bullets. No rocks thrown in the street. No fist fighting. Anger, yes. Disagreement, yes, but they follow it. People follow it. People follow it all over the country because that’s just what you do in the United States of America, and that’s called the Rule of Law.

. . . Now think of how long it has taken us to learn that. Think of our ups and downs. Think of a Civil War. Think of slavery. Think of 80 years of segregation. Think of all kinds of other things so difficult and so awful for the country that we’ve been through. And out of that, we’ve emerged with at least one thing. We don’t agree with that rule, but we’ll do it. And that keeps those 300 million people together.

see in my courtroom . . . people of every race, every religion, every point of view. . . .But where are they to resolve their differences— in a court of law, not on the streets with sticks and stones?”

Justice Sandra Day O’Connor:

“We have promoted in this country the notion of the rule of law as a means for helping ensure peace around the world. In our work with the emerging nations, with the breakup of the Soviet Union, and in other countries, we have actively urged upon every nation that we be concerned with the rule of law and that the key component to that is a fair, impartial, and independent Judiciary. For a long time, I think the federal Judiciary in this country has certainly been noted in other countries and admired, and many would want to copy it. I don’t know if that could be said to be true today in the face of all the criticism that we are hearing today about activist judges. . .

Now, directing anger toward judges has had a long tradition in our nation, I’m sorry to say. President Thomas Jefferson was a very spirited antagonist of judges appointed by the Federalists. And that great former president, President Franklin Roosevelt, took issue with certainly the decisions of the Supreme Court at that time striking down some of his New Deal legislation. And I well remember as a youngster driving around the highways near the Lazy Bee Ranch and seeing Impeach Earl Warren signs all over the highways. So while scorn for some judges is not altogether new, I do think that the breadth of the unhappiness being currently expressed, not only by public officials, but in public opinion polls in the nation, shows that there is a level of unhappiness today that perhaps is greater than in the past and is certainly cause for great concern.

Now we have often cited Alexander Hamilton in these discussions of judging, and he said that “a steady, upright, and impartial administration of the laws is essential, because no man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be the gainer today.”

. . . one last point that I think is well made, is that the public needs to understand that the notion of judicial independence is not only for the benefit of judges. Judicial independence is for the benefit of all of society. I made a trip in recent weeks to meet with a conference of judges in Australia, and I noted there that Australia’s tenth chief justice, Sir Gerard Brennan, said this: “Judicial independence does not exist to serve the judiciary, nor to serve the interests of the other two branches of government. It exists to serve and protect not the governors, but the governed”.”

Panel discussions covered the justifications for and criticisms of judicial independence, judicial selection and removal, interbranch relations, the public’s understanding of the courts, and the media’s role in the shaping that understanding

On Improving the Judicial System
Larry D. Thompson, Former Deputy Attorney General of the United States:

“. . . I strongly believe that scandalously low judicial salaries is the greatest threat to the independent and effective Judiciary that we currently have.

As noted in the excellent ABA-Federal Bar Association report on federal judicial pay, the constitutional guarantees of life tenure and an undiminished salary are the hallmarks of our federal Judiciary. They provide for independence. They provide for the integrity of judicial decision-making, in return for a commitment to public service.

And I think it is this important commitment to public service that is undermined when raw financial considerations prevent quality candidates from seeking an appointment to the federal bench, and when it causes sitting judges to leave the Judiciary for more lucrative jobs in the private sector.

Based on my, I think, pretty strong anecdotal evidence, judges are leaving the bench. And they are leaving the bench at an earlier age, and they are not taking senior status, in favor of returning to the private sector. To me, this is a very dangerous trend that goes directly to the heart of judicial independence at the federal level. Think about this: for a judge to be put into a situation where a judicial position is merely a stepping stone to re-entry to the private sector is a clear weakness in our system. And it’s certainly inconsistent with the notion of a life-time calling of public service. And it should also be noted that when an experienced judge resigns or retires, the caseloads of the remaining [judges] increase and the Judiciary looses the valuable skills and insights of the departing judge that are not easily or quickly replaced. . . .

And I can tell you, as a former official of the Department of Justice, that unrealistically low judicial salaries was probably the most important factor in a good lawyer refusing to accept a judicial appointment.

. . . I believe there is a real risk, because of low judicial salaries, that our Judiciary, eventually, at the federal and state levels, will not be made up of a diverse group of our country’s very best lawyers.

On Interbranch Relations
Newt Gingrich, Former Speaker of the U.S. House of Representatives (R-GA):

“The Founding Fathers were very clear that they believed in a balance of power. . . The Court swears to uphold the Constitution. The President on behalf of the second branch—the executive branch—swears to uphold the Constitution. Members of Congress on behalf of the first branch—the legislative branch—swear to uphold the Constitution. The arrogate (sic) that a handful of lifetime appointees in the Third Branch are somehow superior to the first two branches is an explicit violation of Hamilton’s writing in the Federalists Papers. Hamilton says flatly, the Judiciary will always be the weakest of the three branches, because it has no capacity independently to impose its will. And I think the danger you have—and here I probably speak for a minority in this room, but not in the country—the danger you have is that a Court which imposes elite values in variance with the country, weakens its own believability and puts itself in a position to be repudiated by the legislative and executive branches.

. . . I am suggesting that there are historical precedents for the nation to protect itself, and that the legislative and executive branches, as the first and second branches of the Constitution, deserve equal respect from the Court. And a Court which asserts that it is supreme in deciding these things, and that there is judicial superiority is running, I think, both historically and legally, a very, very dangerous track.”

Tom Daschle, Former U.S. Senate Majority Leader (D-SD)

“. . .Our Founding Fathers lived at a time when liberty and security were really dependent on powerful men, and they saw it as their challenge to create a nation based upon laws and not upon those men. And that’s why I see what’s happening today as very chilling, very troubling. . . .

. . . The tension between the branches and among the branches is something we faced all through history. I call it the noise of democracy and it certainly beats the cacophony of anarchy or the single drum beat of totalitarianism. I think this tension is different today; it’s more insidious and I’m troubled by it. I’m troubled when the Chief Justice has to come before Congress, as he always does, to make his case for funding but argue for more security in the courts and then have to justify, rationalize and explain court decisions. I’m troubled by that.

In the 1930s, the Court made a lot of controversial decisions, but somehow was able to hold its popularity. And I think that the reason they were, in spite of the attacks, was that society and schools and the media had a profound appreciation of the importance of the independence of the Judiciary. Well that independence today is threatened.

So what do we do? . . . I think we reaffirm the importance of that independence as a public value. I think we teach it our schools. I think we hold all of the branches of government accountable in our newspapers. And I think we all, regardless of our positions on the issues, hold it as a high priority.”

Stephen B. Burbank, Professor, University of Pennsylvania Law School:

“I think that the current attacks on the courts, although of course not unprecedented, are unusual and potentially quite dangerous for two reasons: One, because they evidently reflect the strategies of some interests groups and even, alas, of some politicians to attack the courts. That’s new. And two, those strategies themselves reflect the view of judges as policy agents. This is a view that judges are a means to an end and that it is appropriate to pursue chosen policy ends through the selection of judges who are committed or will commit in advance to pursue them on the bench.

It seems to me that there is ample and persuasive evidence from both the Supreme Court and lower federal court appointment experience that it is presidential pursuit of this policy agenda and this view of judges as policy agents and the reaction to it by senators of the opposition parties, that it’s the chief cause of the politicalization of judicial selection at the federal level.”

Warren B. Rudman, former U.S. Senator (R-NH):

“. . . I think there’s only one thing you really have to look at to understand why we must have judicial supremacy in the United States Supreme Court. And I would submit to you that if you didn’t have it, you would have going on in the country what now goes on in the Congress, with years and years, decades of conflict, with no solution in sight, destabilizing the body politic in American society. The case I think of, of course . . .is Brown.

For decades, there was a cancer on this country that neither the Executive Branch nor either political party had the wherewithal or the guts or the intellect to deal with. And it was dealt with by the United States Supreme Court. And it was accepted by everyone, although reluctantly, as the law of the land.

. . . . . . .in my humble opinion, there must be a final arbiter in this country and I think that final arbiter has to be the federal Judiciary in the personification of the Supreme Court.”