The one sense in which the judiciary is never independent is its accountability to the Constitution--the charter of the people.
That’s what drove the American colonies to declare independence from British rule in 1776. England’s abuses led the Founding Fathers to create a system of government that made the Constitution America’s supreme “ruler.”
To protect constitutional principles over time, the Founders created a government structure with three separate branches: executive, legislative, and judicial. Power is distributed among these branches so that no one branch can thwart the Constitution’s preeminence or endanger the liberties it guarantees to all Americans.
The constitutional provisions protecting judicial independence, including lifetime tenure for federal judges, arose in direct response to a 1761 law under King George III specifying that judges in the American colonies would serve at “the royal pleasure.” Five years later, the Declaration of Independence accused the King of “obstruct[ing] the administration of justice by refusing his assent to laws for establishing judiciary powers. He has made judges dependent on his will alone for tenure of their offices, and the amount and payment of their salaries.” Our constitutional provisions for judicial tenure were specifically designed to undermine such external political influence on the judiciary.
Still, like all high-ranking federal officials, federal judges can be impeached for egregious misconduct or ineptitude. Article III of the Constitution provides that judges will “hold their Offices during good Behavior,” but Article II provides that “civil Officers of the United States” [which includes federal judges] can be “removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” The process is deliberately difficult, however, to ensure that judges aren’t removed as retribution for politically unpopular rulings.
These are the central functions of our independent judiciary. Whereas the executive and legislative branches are both distinctly political bodies, the judiciary stands apart by design.
The legislative branch makes laws and the executive branch executes them. But the Founders gave the judicial branch the final word, entrusting the courts to determine if these laws comply with the Constitution. To execute this sacred trust with objectivity and fairness, the courts must not be swayed by politics, special interests, public opinion, or fear of reprisals by more powerful political forces.
The Founders referred to the judiciary as the “least dangerous” branch. In its apparent weakness (holding neither the sword nor the purse), it is by itself no threat to anyone’s rights; it can only be a threat if it is absorbed into one of the two other branches. Therefore the Founders warn us in no uncertain terms to keep the judiciary independent, insulated from political pressures and always able to exercise its crucial function of judgment.
Sandra Day O’Connor, retired U.S. Supreme Court justice, recently said: “Judicial independence does not happen all by itself. It’s tremendously hard to create and it’s easier than most people imagine to destroy. We must be vigilant against those who would retaliate against judges for specific judicial decisions, or who seek to undermine the ability of the courts to play their constitutionally ordained roles.”
Although federal judges are appointed for life, judges in some states are elected, either through partisan or non-partisan public elections. In other states, the legislature elects judges or the governor appoints them.
Nonetheless, even appointed judges may not be entirely independent of changes in political climate. In many instances, appointed state judges must stand for reelection or retention elections.
Some argue that judicial independence arises out of a judge’s personal character, not the manner in which the judge was selected. Others argue that the elective process is simply too political in nature to result in an independent judiciary. Raising ever-increasing amounts of money and rendering politically popular opinions threaten to become necessary steps in the election process.
Whereas elected officials serve the majority of voters, independent judges serve the Constitution. (Article IV specifically requires all judges to recognize the Constitution as “the supreme Law of the Land”). This tension between the branches of government forms the basis of our constitutional democracy, which holds majority rule in balance with minority rights.
The judiciary is also restrained by certain self-imposed limits. Courts typically step back from ruling on political questions better settled by elected branches of government, for example. They also follow the principle of stare decisis (Latin, meaning “to stand by things decided”).
According to stare decisis, judges are bound by the rulings of higher courts, but they also are compelled to follow their own precedents. Although stare decisis is a principle and not a law, it is a foundational doctrine of our justice system, and it checks the power of individual courts.
For judges, “good behavior” clearly means more than simply not misbehaving or being incompetent. “Good behavior” also means faithfully observing constitutional principles and legal precedent—but it does not mean, and must not mean, “behavior that pleases special interests.”