The Importance of Judicial Independence

Do judges have too much power? In recent months, politicians and others have criticized judges for rulings that seem to defy conventional wisdom and the popular will. As a remedy, some have called for the impeachment of federal judges deemed too "activist" and for the popular election of federal judges. Others have called for judicial term limits and for a constitutional amendment that would allow Congress to override Supreme Court decisions by majority vote.

There is nothing new, or even wrong, about criticizing judges for unpopular rulings. Conservative judges have been just as susceptible to condemnation from the left for being "activist" as their liberal counterparts have been from the right.

However, recent attacks go far beyond criticizing individual rulings. Most of these proposals are dangerous because they are aimed at the core of judicial authority itself, the principle of judicial independence. The nation's founders believed that a crucial element of a democratic society was the principle of judicial independence. This power frees judges from the political pressures that might prevent them from impartially enforcing the rights and principles guaranteed by the U.S. Constitution. Furthermore, without this principle, the system of separation of powers and checks and balances among the three branches of government cannot exist.

In the Declaration of Independence, Jefferson protested the fact that King George III "made Judges dependent on his will alone." British judges who wanted to keep their jobs lacked the power to rule against the Crown or Parliament. Thus, America's framers codified the concept of judicial independence into the Constitution by granting judges life tenure and providing for salary protection.

Judicial independence means that judges needn't fear punishment for using their best judgment to interpret the law. The concept is important because it provides for continuity and stability in our legal system, guaranteeing that disputes can be resolved fairly and impartially. An independent judge does not fear for his or her job or good reputation when ruling against excessive governmental regulation, overzealous law enforcement, or discriminatory policies. Judges who are fearful that they can be punished for unpopular decisions are less likely to be neutral referees in the cases that come before them.

Impeachment is properly used for corrupt judges who commit "high crimes and misdemeanors," not as retaliation for controversial rulings. If the people and their elected representatives do not like a federal judge's decision, they have the right to seek the judge's reversal through appeal to a higher court, new legislation, or constitutional amendment. Another remedy is to vote for like-minded presidents and senators who appoint and confirm judges and Supreme Court justices.

Some contend that independent judges are hostile to representative democracy. Ironically, were it not for the decisions of courageous judges on matters such as voting rights, freedom of expression, and search and seizure, we would not have the free and open society we have today.