3112.00.02 - Constitutional law. Administrative law. Finance and
customs law.
THREATS TO JUDICIAL INDEPENDENCE: REFLECTIONS ON THE US
EXPERIENCE
Kosimov Botirjon Ma'rufjon o'g'li
Senior Lecturer at Constitutional Law Department of Tashkent State University of Law E-mail: b.qosimov@tsul.uz
A R T I C L E I N F O
A B S T R A C T
Keywords:
judicial independence, dependent judiciary, Supreme Court, Senate, President, court packing, judicial compensation, career judges, judicial election.
Judicial independence is of importance to maintain the Rule of Law, and it is a foundation for achieving justice in any society. However, judicial independence is threatened in a variety of ways. This article reflects on the United States experiences related to the threats to judicial independence.
INTRODUCTION
The United States Constitution is constructed the way that three branches of government functions separately and equally within their arranged powers, but based on checks and balances. Ideas of separation of powers and checks and balances are embodied in the US Constitution for not only preventing accumulation of all
government powers in the same government branch and preventing any branch being too powerful, but also for ensuring judicial independence
In addition, the constitutional architects tried to safeguard judicial independence against different encroachments by such means as lifetime tenure and undiminished salary. However, if we consider that
those who work for the government are also humans, we may conclude that officials are likely to violate the constitutional rules safeguarding judicial independence.
Threats from the Congress -the federal parliament to judicial independence takes the first place in the governmental sector. The judicial branch is connected with the Congress on jurisdiction and budget and relates to the Senate on conformation. The Congress keeps federal judges in a line via the impeachment. These are often described as checks on the judicial branch. Nevertheless, the Congress is said possibly not to execute its checks over the judiciary faithfully and properly. Further, the US President as a political figure is likely to pose a danger upon the judicial independence. Public criticism and judicial elections in the states also put judicial independence at risk. The main body of the article will look at the mentioned threats in more depth.
The aim of this paper is to reflect on the US experiences related to the threats to judicial independence and to gain insights into how the US judiciary are exposed to threats by the other branches of the government and various factors.
The research data-gathering methods such as historical analysis,
documentary analysis and a case study have been used to reach the aim.
MAIN BODY
The first Chief Justice of the US Supreme Court of John Marshal once said, "The greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people, was an ignorant, a corrupt, or a dependent Judiciary" [1]. However, a judge never becomes dependent since some factors may bring a judge to dependence.
Professor Gerald N. Rosenberg specifies that "...there are ten types of proposals that have been made to limit the power of the Court or demonstrate congressional displeasure. They include: (1) using the Senate's confirmation power to select certain types of judges; (2) enacting constitutional amendments to reverse decisions or change Court structure or procedure; (3) impeachment; (4) withdrawing Court jurisdiction over certain subjects; (5) altering the selection and removal process; (6) requiring extraordinary majorities for declarations of unconstitutionality; (7) allowing appeal from the Supreme Court to a more "representative" tribunal; (8) removing the power of judicial review; (9) slashing the budget; (10) altering the size of the Court" [2].
All federal judges are appointed by the President of the USA with the consent of the Senate. The Senate has been scrutinizing judicial nominees since the beginning. Historically, the Senate's questions were restricted to the professional qualification of nominees and occasionally their general judicial philosophy. Presidential judicial nominees started being invited by the Senate Judiciary Committee in 1930s and the testimony before the Senate became obligatory in 1955. Until this point, questions about judicial positions on real legal issues were not asked from nominees during judicial hearings. However, today the questions of the Senate sometimes seem to take the form of questions about nominee's personal opinions on controversial issues. The Senate is likely to perceive how judicial philosophy of nominees would affect their interpretation of controversial issues under federal laws enacted by the Congress, which may compromise the independence of the judiciary and judges. As Professor Viet D. Dinh asserted "The danger is that judges will come to be agents of the Senate's policy preferences" [3], but not the Constitution and laws.
Another threat by the Congress finds expression in jurisdiction-stripping. The power of
the Congress to establish and restrict jurisdiction of federal courts comes from the constitutional provision specifying, "the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make" [4]. The explicit example makes it clear. In December 2005 before Hamdan v. Rumsfeld case was heard by the Supreme Court, the Congress enacted Detainee Treatment Act [5] which aimed at withdrawing from federal courts jurisdiction to hear objections raised by suspected terrorists to their detention and treatment at Guantanamo Bay. After the court held that the law did not mean to strip jurisdiction over habeas petitions, in 2006 the Congress passed the Military Commissions Act, which removed jurisdiction over cases of Guantanamo detainees from federal courts.
The most interesting thing is that the Congress enacts an appropriate law at issue in a case pending before the Supreme Court. Viet D. Dinh claims that "Congress has exercised the authority to strip federal courts of jurisdiction for centuries, and judicial independence has not suffered measurably for it" [6]. According to John Ferejohn, "Politically, these events may not
appear confrontational, but their cumulative effect can substantially erode the capacity of the judiciary to protect individual liberties by removing such issues from the federal courts. Not every attempt to limit the jurisdiction of federal courts, however, is an objectionable intrusion on judicial independence. Some restrictions are aimed at increasing the efficiency of the system by removing certain unimportant cases or those that can be fairly resolved by state courts" [7].
Attempting to reduce the budget granted by the Congress to the judiciary is also another matter of threat to judicial independence. In the USA since 1939 the judicial branch has been administrating the budget and funds allocated by the Congress to the federal judiciary on its own. The judicial branch estimates its needs and submits them directly to the Congress or to the executive branch for incorporation into the national budget document without change. However, the current procedures for judicial budgeting hardly prevent the judiciary from control by the other branches. The practice shows "the executive branch, for example, can influence judicial funding levels by its recommendations to Congress on fiscal policy. And, of course, Congress still determines the level of
judicial branch funding. Legislators can use their funding power to show their approval or disapproval of how judges administer the courts and, although it probably happens rarely, to show their approval or disapproval of judicial decision" [8].
The Constitution of the United States provides that federal judges "receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office" [9]. Judges have complained the whole history that their salaries are not sufficient. In many parts in the country, freshmen lawyers occasionally earn more than federal judges. Being aware of that the federal judges remind that rejection by the Congress to let their salaries keep pace with inflation may cause harm to judicial independence [10]. Chief Justice Roberts in his second "Year-End Report on the Federal Judiciary" delivered on January 1, 2007 described the stagnation in judicial pay as a "constitutional crisis that threatens to undermine the strength and independence of the federal judiciary" [11].
Impeachment is a measure which can be applied by the Congress to remove federal life-tenured judges for their "treason, bribery, or other high crimes and misdemeanours" [12]. The Congress
first tried to impeach Associate Justice Samuel Chase in 1804 abusing this power. Samuel Chase with a volcanic personality had been appointed by the Federalist president. After the presidency and most Congress seats were gained by Democratic-Republicans "Chase showed no willingness to tone down his bitter partisan rhetoric. Representative John Randolph of Virginia, at the urging of President Thomas Jefferson, orchestrated impeachment proceedings against Chase, declaring he would wipe the floor with the obnoxious justice. The House voted to impeach Chase on March 12, 1804, accusing Chase of refusing to dismiss biased jurors and of excluding or limiting defense witnesses in two politically sensitive cases. The trial managers (members of the House of Representatives) hoped to prove that Chase had "behaved in an arbitrary, oppressive, and unjust way by announcing his legal interpretation on the law of treason before defense counsel had been heard" [13]. Nevertheless, when the case reached the Senate "Chase's defense team, which included several of the nation's most eminent attorneys, convinced several wavering senators that Chase's conduct did not warrant his removal from office. With at least six Jeffersonian Republicans joining the
nine Federalists who voted not guilty on each article, the Senate on March 1, 1805, acquitted Samuel Chase on all counts" [14].
The President of the USA as a political figure is likely to pose a danger upon the judicial independence. Announcing the impeachment upon Samuel Chase at the urging of President Thomas Jefferson can server an explicit example for that. Despite the fact that the US President appoints federal judges, political party from which the president was elected plays a significant role in the judicial selection process as the president consults leaders of his party, mainly senators of the Congress. Some researchers claim that "because each president draws appointees almost exclusively from members of his political party, the judges so appointed are in effect party functionaries on the bench" [15]. Opinions of judges appointed by Presidents Woodrow Wilson through William Clinton affirmed "that decisions of judges who had been Democrats were more "liberal" than the ones of those who had been Republicans, although the differences were slight. .No doubt some of the over 3000 persons who have served as federal judges since 1789 have decided specific cases with an eye to pleasing the
presidents who appointed them" [16]. Besides, when justices did not make a concession to the political preferences of the other branches, the president attempted to expand the seat number of justices in the federal courts. They put their additional justices whom they thought to be loyal to their policy in order to receive more supporting votes of the Supreme Court justices. This attempt is named "Court packing".
What has been intended by the presidents mentioned above has not been absolute and true all the time. During the period of Great Depression, in 1937, the founder of New Deal program President Franklin Delano Roosevelt proposed that the Congress expand the seats in the Supreme Court up to 15 justices as laws enacted by the Congress intending to realization of New Deal program had been invalidated by the conservative justices of the Supreme Court. Court Packing Plan was defeated due to the congressional disapproval and this is regarded as a victory for the independence of the federal judiciary [17].
President Theodore
Roosevelt complained of Justice Oliver Wendell being disappointed. President Richard Nixon and Clinton were disappointed that unanimous
Supreme Courts with their appointees tried them whilst those presidents were in the post. President Harry Truman did not say in vain, "Whenever you put a man on the Supreme Court he ceases to be your friend" [18]. This is why President Carter noted, "as President I have taken an oath to uphold the laws of the United States as interpreted by the Supreme Court of the United States. So, if the Supreme Court should rule, as they have, on abortion and other sensitive issues contrary to my own personal beliefs, I have to carry out, in accordance with my solemn oath and my duties as President, the ruling of the Supreme Court" [19].
Some portions of threats to judicial independence are attributable to interrelation between ordinary judges and officer judges (chairman of the court, chief justice) and between lower courts and higher courts.
Law Professor Lydia Brashear Tiede notes that courts of higher level may influence courts of lower level. Selecting which lower court cases to review depends on the certiorari of the Supreme Court. In turn, this send signals to lower courts about what behaviour will let review and possible reversal and what behaviour will not. According to Cameron, Segal, and Songer, a
conservative higher court tends to review liberal rulings of lower courts than conservative lower court ones.
Also, within a certain court, judges with chairmanship, for instance, chief appellate judges may affect other appellate judges assigning cases to particular panels of judges and composing those panels. Atkins and Zavoina observed the acts of the Fifth Circuit's Chief Appellate Judge between 1961 and 1963. They found that the Chief Justice formed the panels of judges hearing race relations cases in such a way as to represent the Chief Justice's preferences in these cases. By deciding which judges would hear such contentious cases, the Chief Justice was able to structure panels to include judges with opinions similar to his own [20].
Allowing the judicial process to be not sympathetic to extraneous influences is one of main factors for seeking judicial independence so that judges can weigh evidence and apply laws in an objective manner. Professor John Ferejohn notes that "In our market driven society, such influences seem as likely to emanate from powerful social or economic forces as from other public officials. Public officials, after all, have a duty to defend the Constitution even if they sometimes fail to live up to that duty" [21]. Judges must not bring to
their work the preferences and perceptions of a dominating class of the society. Judges are possibly offered a reward for decision-making in favour of an individual interest. Legislation has to take it into consideration and must never allow this. Therefore, the US Constitution considers bribery as one of the causes of impeachment.
When criticism is turned to as the public attack on judicial independence, I would like to consider historical occurrence concerning Earl Warren who became the Chief Justice in 1953. He is acknowledged as the second greatest Supreme Court Chief Justice since John Marshal, the first Supreme Court Chief Justice. Brown v. Board of Education case in 1954 is recognized as one of the greatest Supreme Court decisions of the 20th century. The ruling unanimously held that the racial segregation of children in public schools violated the Equal Protection Clause of the Fourteenth Amendment [22]. Chief Justice Earl Warren did a lot about school desegregation writing the Brown opinion. His critics, especially segregationists, from Southern states blamed Warren on putting forward his own opinions on the Constitution rather than relying on the Framers' intent. Billboards full of
anger appeared across the country proclaiming "Impeach Earl Warren" [23].
Judicial independence is not immunity from criticism [24]. However, some scholars observe that "judicial independence is vulnerable to assault; it can be shattered if the society law exists to serve does not take care of assure of its preservation" [25].
Simultaneously, others hold that "Criticism encourages judges to realize more fully the practice of ignoring irrelevances when they decide cases" [26].
Viet D. Dinh asserts that "Public criticism of judicial decisions does not, by itself, necessarily threaten the independence of the judiciary; in fact, under some circumstances, such critiques paradoxically can help bring about a more robust form of judicial independence" [27], but "A real danger exists that the publicly stated views of political elites - activists, the news media, and officeholders - will condition the environment in which judges operate, leading career-minded members of the federal judiciary to tailor their rulings to conform to the views of the politically influential" [28]. Seen in this light, public criticism can mostly influence on career judges. Who are career judges actually? Career judges are
those who seek promotion to higher or more prestigious courts. Mostly state-judges and lower federal court judges would expect to advance through ranks. Career judges handle a case based on not what laws demand, but what can favor the political elites knowing that while examining nominees for higher court justices the Senate would consider nominees' prior adjudications and judges whose previous rulings seem disagreeable for the president and senators are unlikely to be nominated and confirmed to the higher ranking judicial post [29].
It is necessary to look into selection methods in the states within the United States so as to grasp a real provision of judicial independence not only at the federal level, but also at the state level. Up to the 19th century in many states judges were selected via gubernatorial appointment. Then states replaced this kind of selection with partisan or non-partisan elections. In the 20th century some states attempted to change this system with gubernatorial appointment based on the list of nominees developed by commissions consisting of professions of law and other fields. Elected judges have to stand for "retention elections" which takes place periodically. In retention
elections neither of two candidates has to be chosen, but voters have to choose "yes" for the candidate to retain the judge in post, or "no" to remove the judge from office [30].
Many argue that the election method is the method which can influence negatively on transparency of judicial independence. The judges whose rulings conform to the laws, but not popular preferences are said to feel fear of an electoral retaliation observed in retention elections to unpopular decisions. Critics think that so selected judges may endanger their independence being obliged to financial supporters in the election campaign. Research of retention election system in 10 states showed that substantial amount of respondent judges became more
susceptible to public opinion than they would otherwise be [31].
CONCLUSION
Judicial independence is a cornerstone of the United States legal system. The US Constitution reflects the legacy of judicial independence, which is regarded a constitutional value. For years, judicial independence has been a concern of scholars and lawyers. The US academic and legal community make their voice with regard to any threats to judicial independence since they believe that judicial independence must be always valued and protected. This definitely plays a key role in withstanding challenges faced by the judiciary in any society.
REFERENCES
1. Michael D. Gilbert. Judicial independence and social welfare. Michigan Law Review. Vol.112. Issue 4. - P.577.
2. Gerald N. Rosenberg. Judicial Independence and the Reality of political Power. The Review of Politics, Vol. 54, No. 3, Special Issue on Public Law (Summer, 1992). - P.376-377.
3. Viet D. Dinh. Threats to judicial independence, real and imagined. Daedalus, Vol. 137, N 4, On Judicial Independence (Fall, 2008). - P.69.
4. The US Constitution. Article III Section 2. See
http://constitutioncenter.org/constitution/the-articles/article-iii-the-judicial-branch
5. Public Law No. 109-148, sections 1001-1006 (2005). See http://www.gpo.gov/fdsys/pkg/PLAW-109publ148/pdf/PLAW-109publ148.pdf
6. Viet D. Dinh. Threats to judicial independence, real and imagined. Daedalus, Vol. 137, N 4, On Judicial Independence (Fall, 2008). - P.69.
7. John Ferejohn. Independent judges, dependent judiciary: explaining judicial independence. Southern California Law Review. Vol. 72:353. 1999. - P.355.
8. Guidance for Promoting Judicial Independence and Impartiality. Revised edition. 2002. Washington DC. - P.136 See http://pdf.usaid.gov/pdf_docs/pnacm007.pdf
9. The US Constitution. Article III Section 1.
See http://constitutioncenter.org/constitution/the-articles/article-iii-the-judicial-branch
10. Guidance for Promoting Judicial Independence and Impartiality. Revised edition. 2002. Washington DC. - P. 136
See http://pdf.usaid.gov/pdf_docs/pnacm007.pdf
11. John G. Roberts, Jr., "2006 Year-End Report on the Federal Judiciary" (2007). See www.supremecourtus.gov/publicinfo/year-end/2oo6 year-endreport.pdf
12. The US Constitution. Article II Section 4.
See http://constitutioncenter.org/constitution/the-articles/article-iii-the-judicial-branch
13. See http://www.senate.gov/artandhistory/history/minute/Senate_Tries_Justice.htm
14. Id.
15. Guidance for Promoting Judicial Independence and Impartiality. Revised edition. 2002. Washington DC. - P. 139
See http://pdf.usaid.gov/pdf_docs/pnacm007.pdf
16. Id.
17. See http://www.history.com/this-day-in-history/roosevelt-announces-court-packing-plan; also http://legal-dictionary.thefreedictionary.com/FDR's+Court+Packing+Plan
18. Jack E.Holmes, Michael J. Engelhardt, Robert E. Elder, Jr. American Government: Essentials & Perspectives. McGraw-Hill, Inc. 1991. -P.257.
19. Keith E. Whittington. Presidential Challenges to Judicial Supremacy and the Politics of Constitutional Meaning. Polity. Volume XXXIII, Number 3. Spring 2001. -P.383-384.
20. Lydia Brasher Tiede. Judicial independence: often cited, rarely understood. Journal of contemporary legal issues. Vol. 15: 129, 2006. - P. 153-155.
21. John Ferejohn. Independent judges, dependent judiciary: explaining judicial independence. Southern California Law Review. Vol. 72:353. 1999. - P. 369.
22. See http://www.pbs.org/wnet/supremecourt/rights/landmark_brown.html
23. See http://constitutioncenter.org/timeline/html/cw11_12268.html
24. Linda Greenhouse. Independence: why and from what? Daedalus, Vol. 137, N 4. On Judicial Independence (Fall, 2008). - P.5-6.
25. Id.
26. Viet D. Dinh. Threats to judicial independence, real and imagined. Daedalus, Vol. 137, N 4, On Judicial Independence (Fall, 2008). - P.72
27. Id. - P.64.
28. Id. - P.72.
29. Id.
30. Guidance for Promoting Judicial Independence and Impartiality. Revised edition. 2002. Washington DC. - P. 140
See http://pdf.usaid.gov/pdf_docs/pnacm007.pdf
31. Id. - P.140-142.
