Judicial independence—an essential American value

Michael H. Reed

Judicial independence—an essential American value
ABA Journal Daily News
By Michael H. Reed
Posted March 29, 2018, 8:30 am CDT

It was 1936, and America was suffering through the throes of the Great Depression. President Franklin Delano Roosevelt had just been re-elected in a landslide. The Democrats controlled the Congress with wide majorities in the House and Senate.

Led by the Roosevelt administration, the Congress had enacted an array of legislation to restore the economy, establishing the National Recovery Administration, the Agricultural Adjustment Act, the Securities and Exchange Commission, the Rural Electrification Act, the National Youth Administration and the Works Progress Administration.

In 1935, however, the U.S. Supreme Court had declared the National Recovery Administration and the Agricultural Adjustment Act unconstitutional. And in June 1936, the court struck down a New York state minimum wage law covering women and child workers. The administration was concerned that two other legislative landmarks, the Social Security Act and the National Labor Relations Act, would also be invalidated by a conservative majority of justices on the court. In response, Roosevelt asked Congress to empower him to appoint an additional justice for any member of the court over the age of 70 who did not retire. Roosevelt sought to appoint up to six additional justices as well as up to 44 additional judges in the lower federal courts.

Roosevelt contended that his proposal was not politically motivated, but rather was intended to address an alleged shortage in judges that had purportedly resulted in delays in the processing of litigation in the federal courts. (This explanation is now echoed by legislators who claim that they seek to split the San Francisco-based 9th U.S. Circuit Court of Appeals because of the court’s alleged dysfunction rather than for political reasons, a proposal that is opposed by the American Bar Association.)

Roosevelt’s infamous attempt to "pack the court" ultimately failed. Justice Owen Roberts (this seems to imply he was appointed by Roosevelt), who previously had voted with the conservative majority, switched sides, voting with the more liberal justices to uphold the Social Security Act, the National Labor Relations Act and other New Deal legislation opposed by conservatives.

More essays on fair courts
About the series

Judicial Independence in the U.S. federal courts
Judicial Learning Center - Judicial Independence

 In 2016, in response to decisions perceived by some to be too liberal, legislators mounted a campaign to oppose the retention of the justices of the Kansas Supreme Court who had joined in those rulings and proposed to curtail the powers and authority of the court as a whole. Efforts were also made to expand the grounds for impeachment of Kansas justices from the more traditional reasons of "treason, bribery, or other high crimes and misdemeanors" to include such things as "failure to perform adequately the duties of office," "attempting to subvert fundamental laws and introduce arbitrary power", "attempting to usurp the power of the legislative or executive branch," "exhibiting discourteous conduct in their official capacity" or "exhibiting wanton or reckless judicial conduct."

Fortunately, Kansas voters rejected the effort to unseat four justices who had been targeted for nonretention.

Earlier this year, the Pennsylvania Supreme Court, which includes five Democrats and two Republicans, held that federal congressional voting districts that had been gerrymandered to favor Republican candidates were unconstitutional under the Pennsylvania Constitution. The court also found that the revised voting map submitted by the Republican-controlled legislature had failed to cure the constitutional infirmity and imposed its own revisions. After challenges to the state supreme court’s rulings brought in the federal courts failed, several Republican legislators sponsored a bill in the Pennsylvania House of Representatives calling for the impeachment of the four justices (all Democrats) who had voted in favor of issuing the court’s own voting map, accusing them of "misbehavior in office." Happily, Pennsylvania Chief Justice Thomas G. Saylor, a Republican who dissented in each of the court’s rulings, issued a statement strongly opposing the impeachment bill "as an attack upon an independent judiciary, which is an essential component of our constitutional plan of government."

Judicial independence—the ability to decide court cases fairly and impartially without fear of punishment and without control or influence by the executive or legislative branches, is not a Democrat versus Republican issue. Nor is it a liberal versus conservative issue. Threats to judicial independence have arisen from the right and the left, and judicial independence has been defended by those on the right and the left. Judicial independence is part of the DNA of American judicial systems—state and federal. It is one of the features that make our courts models for other democracies. In our federal system, judicial independence is grounded in the structure of the national government established under the U.S. Constitution that provides for the separation of powers and allocates the "judicial power of the United States" to the judicial branch. It is also rooted in the principles of due process of law preserved in the Bill of Rights and in the Supreme Court’s power of judicial review recognized by Chief Justice John Marshall in Marbury v. Madison.

Scholars, for instance, those at the National Conference of State Legislatures have observed that "separation of powers is key to the workings of American government."

Absent judicial misconduct falling within the traditional grounds for impeachment such as treason, bribery or other high crimes or misdemeanors, the appropriate remedies to address judicial decisions that are disfavored are: (1) replacement of the judges through the electoral process in those systems where judges are elected; (2) enactment of legislation through the legislative process to overturn the court decision where it is not based on the constitution; and (3) constitutional amendment. Read more

_______________________________________________

Michael H. Reed is the Pennsylvania State Delegate in the American Bar Association, having previously served on the Association’s Board of Governors and chaired the Standing Committee on Federal Judicial Improvements and the Subcommittee on Federal Courts of the Standing Committee on the American Judicial System. He is former President of the Pennsylvania Bar Association and special counsel with the firm of Pepper Hamilton, having joined the firm in 1972 and been a partner from 1980 to 2013. He received a B.A. in political science from Temple University in 1969 and a J.D. from Yale Law School in 1972. 

__________________________________________________

Judicial independence and accountability in administrative law

Edwin Felter, Jr.

Judicial independence and accountability in administrative law
American Bar Association Online Journal
By Edwin Felter, Jr.
Posted April 26, 2018, 8:30 am CDT

The administrative law judiciary, both state and federal, has a greater need to demonstrate its judicial independence than the judicial branch because there have been long-held perceptions by segments of the public, that administrative law adjudicators—who are designated as "ALJs," "hearing officers," or "hearing examiners"—are too cozy with the agencies whose cases they hear.

(For a detailed treatment of the subject, please see "Judicial Independence and Accountability: The Right and the Wrong Kind," by the author.)

Consequently, to establish appropriate perceptions of fairness and impartiality, the administrative law judiciary must satisfy the public that it is independent of the agencies. This added necessity is not readily appreciated by some members of the judicial branch because it is unthinkable for them to be perceived as too cozy with executive branch agencies, including prosecutors, when they hear cases involving the agencies.

The concept of judicial independence is not supportable without concurrent accountability. A U.S. district judge, who is a friend, once told me: "You ALJs are always touting ‘judicial independence’ so you can do whatever you want."

My reply was: "You’re a federal judge with lifetime tenure telling me, an executive branch creature, that I tout ‘judicial independence’ so that I can do what I want."

This was probably not the best rejoinder. With the benefit of hindsight, I should have argued that administrative law adjudicators are far more accountable, in more ways than one, than federal judges.

Indeed, the ABA Model Code of Judicial Conduct, in the "application" section, provides that the code applies to all full-time judges, and goes on to define "judges" as "anyone who is authorized to perform judicial functions, including … a member of the administrative law judiciary." (Emphasis added.)

Rule 1.2 of the code, among other things, provides that "a judge shall act at all times in a manner that promotes public confidence in the independence [emphasis added], integrity, and impartiality of the judiciary." Decisional independence is the cornerstone of a properly functioning judicial and quasi-judicial system. To quote the late former Chief Justice William Rehnquist, an independent judiciary is "the crown jewel of our system of government."

In the author’s opinion, there are right kinds of accountability and wrong kinds of accountability (e.g., political accountability). The best form of accountability is adherence to the Code of Judicial Conduct (an all-encompassing performance code for judges). All codes of judicial conduct espouse the values of judicial independence, impartiality, integrity, diligence and competence, as evidenced by The Bangalore Principles of Judicial Conduct (2002), which was signed by the chief justices of 29 countries.

An important form of accountability (always for appellate judges and ALJs) is the requirement of "reasoned elaboration" (explaining legal reasons concerning how and why the outcome is what it is). The second form is "appeal." An appellate tribunal is able to correct legal errors, "arbitrary and capricious" decisions, clear violations of statutory law, violations of due process, and erroneous findings of ultimate fact. An ALJ is under a compelling obligation to explain the reasoning underlying a decision because of the need to demonstrate decisional independence to the litigants, the public and reviewing tribunals.

For federal ALJs under the federal Administrative Procedure Act, there are no judgmental performance evaluations. Judgmental evaluations can affect pay, status, demotions and terminations. There is a rigorous selection process, so the trick is in hiring competent, ethical ALJs in the first place. At the state level, especially where ALJs are civil servants, there are mandatory judgmental performance evaluations under a state personnel system. In the author’s opinion, these performance evaluations should be synchronized with the code of judicial conduct. It is critically important to have true objective criteria, e.g., timeliness of decisions. There should be safeguards against activation of the "halo effect," which is when bosses tend to reward those most like themselves.

Developmental evaluations are appropriate if not used in judgmental evaluations. These can take the form of nonmandatory peer review of decisions, anonymous surveys of practitioners and litigants, again if they are used for professional development and not in judgmental evaluations.

Improper forms of accountability are usually political in one form or another. Sometimes the foes of judicial independence argue that the voters should determine who their judges should be with the rationale that the judges should reflect the community where they serve. A recent television series comes to mind: Wisdom of the Crowd. The "crowd" envisioned by the author may be one of two crowds: (1) the lynch mob running after a suspect, chanting "let’s string him up;" or (2) the 19th-century villagers, with torches in hand, running after Dr. Frankenstein and his creation. An independent judiciary, including an administrative law judiciary, exists to replace these scenarios with fair, impartial and orderly due process. Read more

______________________________________

Edwin L. Felter, Jr. is Senior Administrative Law Judge, Colorado Office of Administrative Courts (OAC) and he is an Adjunct Professor of Law at the University of Denver, Sturm College of Law, 2006–. He was director and chief judge of the OAC from 1983 – 1998. He was Chair of the National Conference of the Administrative Law Judiciary (NCALJ), American Bar Association (ABA), 2000/2001, and he was Chair of the Council of the Government and Public Sector Lawyers’ Division of the AB, 2012/2013. He was on the Standing Committee on Ethics and Professional Responsibility, 2006/2009.

______________________________________

More essays on fair courts
About the series

Judicial Independence in the U.S. federal courts
Judicial Learning Center - Judicial Independence

_______________________________________

If a nation has no independent judiciary, rights are merely 'empty promises'

Patricia Timmons-Goodson

If a nation has no independent judiciary, rights are merely 'empty promises'
ABA Journal Daily News
By Patricia Timmons-Goodson
March 1, 2018

Judicial independence.

Some have pointed out that a remarkable feature of the principle is how few words it takes to enunciate it, and how many years it takes to understand and implement it. Others speak reverently about the principle while referencing phrases such as "separation of powers" and "rule of law."

After 28 years of judicial experience, I now have a firm grasp of the principle of judicial independence. I am further aided in my understanding of the principle by looking at our nation’s history.

As I write, I am mindful that the courts and judges have been both the greatest foe and the strongest ally in the African-American struggle for citizenship. In the landmark decision of Dred Scott v. Sandford (1857), the U.S. Supreme Court held that African-Americans were not citizens and thus had no standing to sue in federal court. A century later, in another landmark decision, the court declared in Brown v. Board of Education (1954) that state laws creating separate public schools for black and white students were unconstitutional. A renewed faith in our nation and its foundational principles were ignited among a group of citizens who had previously worn the scars of second-class citizenship. The decision in Brown exemplifies the value and the strength of an independent judiciary. The hugely unpopular ruling enforced the rights of marginalized African-American citizens to equal protection under the law. I submit that judicial independence was at the heart of the seminal ruling of the court.

Not all of the decisions made by judges are as pivotal and far-reaching as those announced in Dred Scott and Brown. The judges and courts across the country perform each day the important work of resolving a wide range of disputes placed before them, large and small. They do their part to keep our nation and her citizens secure. This responsibility is no small task. The judges and courts often confront intractable societal problems that are presented in a legal posture. Possessing a belief in the rule of law and the courage to do their best to interpret and enforce the laws, the judges solve problems that the litigants and society are unable to resolve. The issues range from child custody determinations to issues regarding capital punishment, with million-dollar civil litigation in the middle. Through it all, the judiciary upholds the rule of law and enforces the rights guaranteed by law.

After more than two centuries of service, the judicial branch and its judges have earned the trust of the people by protecting them from the overreaching of the majority and unlawful acts of their government. They have earned it by exercising judicial independence. What then is the definition of "judicial independence?"

It is the principle that judges should reach legal decisions free from any outside pressures. It means that judges are free to act solely according to the law and their good-faith interpretation of it, no matter how unpopular their decision might be. Under the strong arm of judicial independence, judges need not fear reprisals for interpreting and applying the law to the best of their abilities.

The citizens of the United States of America and those who inhabit her shores enjoy freedoms, security, and prosperity in large measure because of this strong, independent judiciary. Our nation’s courts are the envy of the world. Every one, whether they are native-born citizens, immigrants, or even foreign governments, are assured fair and equitable treatment before our courts. All are entitled to a fair and impartial decision by a fair and independent judge.

Imagine our nation without an independent judiciary composed of fair and impartial judges. Imagine a society as exists in many parts of the world, where prestige, power, and money are the currency of justice and the courts. The outcome of any legal dispute in these countries is rarely in doubt. The presence of a third, independent, co-equal branch of government in the United States ruled by laws assures a more principled outcome.

Judges, and the courts in which they preside, must have the authority and independence to ensure fairness. As Chief Justice John Roberts pointed out, any nation may have a constitution and laws "purport[ing] to grant wonderful rights to all sorts of people," but in the absence of an independent judiciary "to uphold the rule of law and enforce those rights," those rights are mere "empty promises." We must protect and preserve the independence of our judiciary in order to guarantee that the rights enshrined in the nation’s founding documents and laws are not empty promises. Each of us must be willing to work toward that end. Read more
_______________________

Patricia Timmons-Goodson is a retired member of the Supreme Court of North Carolina. She now serves as Vice Chair of the United States Commission on Civil Rights. The views expressed in the article are her own, and do not reflect the position of the Commission. She is a past Secretary of the ABA Judicial Division’s Appellate Judges Conference, past Co-chair of the Judges’ Journal Editorial Board, and former member of the ABA Journal Board of Editors.

More essays on fair courts
About the series

Judicial Independence in the U.S. federal courts
Judicial Learning Center - Judicial Independence

Nina Simone sings of rights as merely 'empty promises'