“We are a nation of laws. Our courts are honest and independent. The President can’t tell the courts how to rule and neither can any other member of the executive or legislative branch.”
— President George W. Bush, from a speech given at Tsinghua University, on his recent visit to China.
The framers of the United States Constitution implemented two truly original ideas. The first was the notion of a chief executive who was not responsible to the legislature, unlike chief executives under the parliamentary system. The second was the idea of an independent judiciary with the authority to declare laws passed by the legislature unconstitutional. This notion of separation of powers - commonly called “checks and balances” - is most often credited with the resiliency shown by our constitutional form of government over the past 225 years. The fact is, though, that the judicial branch of government has not been able to take its independence for granted throughout much of our history.
For example, the rise of Jacksonian Democracy at the close of the 1820s brought a wave of antagonism directed towards the state and federal courts. Legislation was introduced in Congress to strip the United States Supreme Court of jurisdiction to hear appeals from state courts. President Andrew Jackson was credited with the remark, “John Marshall has made his decision, now let him enforce it.” Chief Justice Marshall, for his part, viewed judicial independence as the security for justice, stating that “The greatest scourge an angry Heaven ever inflicted upon an ungrateful and smiling people was an ignorant, a corrupt or dependent Judiciary.”
In the last century, President Franklin Roosevelt asked Congress to enact what would become known as the “court-packing plan,” which would have allowed him to replace any justice over age 70 who did not retire with an additional justice, up to 15. This obvious effort to change the philosophy of the Court was rejected by the Senate in 1937.
Closer to home, the independence of the judiciary took a hit when the structure of Florida’s Judicial Nominating Commissions was altered to give the governor control over who serves on the 26 JNCs. Previously, The Florida Bar made three appointments to the nine-member JNCs.
Further, even with this year’s legislative session focused primarily on redistricting and budget deficits, attacks on the judiciary continue. Legislation has been introduced which would eliminate merit retention for Supreme Court and District Court of Appeal judges; would allow the Legislature to repeal Supreme Court rules with a majority vote (two-thirds is now required); and would make all writs issued by the courts, including the writ of habeas corpus, subject to statutes of limitation established by the Legislature. There is no doubt that these and other similar proposals winding their way through the Legislature are designed to transfer authority away from the judiciary in favor of the executive and legislative branches.
If attacks on the independence of the judiciary are to be repelled, we must educate the public that independence from the other branches of government is not for the personal benefit of judges and lawyers, but for the protection of the people. Judicial independence is protected by the U.S. Constitution because the founders had first-hand experience with governmental persecution. Courts in the colonies were seen as an instrument of oppression. Juries could be locked up until they reached the “right” decision. Judges were viewed as puppets of the king. In fact, the Declaration of Independence criticized King George III for making “judges dependent upon his will alone for the tenure of their offices and the amount and payment of their salaries.”
Independence does not encompass irresponsibility or conduct deleterious to the administration of justice. Judges and lawyers do not seek to be insulated from accountability or, where necessary, discipline. But history and experience teach that judicial independence is the best safeguard against a government tempted to abuse power or infringe upon individual liberties.
Emerging democracies look to our system of an independent judiciary as a model. It was good to see President Bush reaffirm America’s commitment to judicial independence last month in China. Let us never forget the lessons of history here at home.