The Importance of Judicial Independence

One thing that many law school graduates take for granted is an elemental understanding of United States government function. If you make it to law school without an understanding of our three co-equal branches of government, you will absorb this lesson quickly in reading the complex decisions of the judicial branch that are assigned starting on the first day of school. So for lawyers, regardless of specialty, it may be easy to forget that this basic starting point may not be understood by the average citizen. In fact, only a little more than one-third of Americans can name the three branches of government, let alone describe their role in our constitutional democracy.

Justice Sandra Day O'Connor, JD '52 (BA '50)
Justice Sandra Day O’Connor, JD ’52 (BA ’50)

For the legislative and executive branches, this lack of structural understanding is unfortunate but does not necessarily have disastrous consequences. Voters need not precisely understand the processes by which policy is made to know that they agree with some politicians’ policy preferences and disagree with others. And, for the most part, these policy preferences can guide well-informed votes for candidates who will lead with accountability to voter preferences. Such accountability is an important attribute in our legislators and executives.

But the judicial branch is another matter because of its unique function of fairly and impartially applying the law. Our nation’s judges should not be selected based on their policy preferences, nor should they be influenced by voter preferences. Instead, they must be accountable to the law as it is and independent from political pressure in the application of it. The citizens are the ultimate guardians of this function of the courts, and thus they must understand it.

Unfortunately, more than three-fourths of Americans believe that state judges should represent the views of the people of their state. I believe that public misperception about the role of the judiciary is augmented by the current political landscape of judicial elections, which are currently held in 39 states in some form. In recent years, campaigns for judge have become contentious and vituperative, and candidates have had to raise more and more money to compete. Fundraising for judicial campaigns has skyrocketed, and special interest groups on both sides of sensitive cultural and economic issues have jumped into the fray to counteract their opponents’ efforts to influence elections. The weapons in this judicial “arms race” are campaign advertisements bankrolled by these groups. Advertisements in judicial races too often send an unmistakable message to our citizens that a judicial candidate should be elected because she will rule based on her biases, instead of suggesting voters should trust her to be impartial enough to set those biases aside.

As a result, voters in states that elect judges are more cynical about the courts, more likely to believe that judges are “legislating from the bench,” and less likely to believe that judges are fair and impartial. This distrust has the perverse effect of making voters more inclined to elect their judges rather than allowing for an appointment process. If you do not believe that judges are or can be fair and impartial, you will want to select judges by a process that you believe will be most likely to result in a judge who is partial to you.

To me, that is unacceptable. People must understand the role of the judiciary so that they can properly uphold its independence and ensure its accountability to the law of the land. This understanding is essential to the functionality of our government. Alexander Hamilton wrote in The Federalist Papers that “[t]he complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.” Thus the independent judiciary is the only way to ensure that the tenets of our Constitution will be upheld even when they may be unpopular.

The concept of judicial independence is essential to justice for each individual because, as Hamilton also said, “[N]o 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.” The citizens must understand that it is ultimately in their self-interest for judges not to be influenced by their policy preferences because of the possibility that one day they will be in a position in which their own cherished rights are politically unpopular. By building this perspective, we can grow a vibrant constituency of active citizens for judicial independence.

This goal is impossible to fully achieve in states that continue to elect their judges in partisan judicial elections. In these states, the fundraising arms race will continue, and without structural reforms it will be hard for citizens to turn a blind eye to their immediate policy preferences in favor of the longer view of judicial independence.

To solve this dilemma, proponents of judicial independence and accountability to the law must work to promote merit selection processes, whereby an independent commission of citizens selects a pool of qualified judicial candidates from which the governor of the state can choose an appointee. In many such systems periodic retention elections ensure that voters do not lose their voice in the judicial selection process. But these uncontested retention elections are typically far less rancorous than contested judicial elections and do not draw the same kind of interest group money.

Merit selection is not a perfect system, but in my estimation it is the best process that has been developed to strengthen demand for and achievement of judicial independence and accountability to the law. SL