For Schools

High School Students (Grades 7-12)
Independent Courts: How Important Are They?

What Is Judicial Independence?

Time: 1-2 class periods

Overview:
This activity asks students to explore what judicial independence is and why it is important. Students are given a quick overview at the history of judicial independence here and abroad, then are asked to look at some scenarios to determine which actions may violate judicial independence. A final exercise asks students to relate the process of becoming a judge in three jurisdictions to ensuring judicial independence.

Objectives
Students will

  • Determine why judicial independence is important by understanding its place in our history and how unusual it is in other parts of the world.
  • Determine what constitutes judicial independence by looking at some practices that may violate it.
  • Understand the link between methods of selecting judges and judicial independence by examining the process of becoming a judge in three jurisdictions.

Preparation
Be sure to talk with the teacher in advance about this activity. Provide the teacher with a copy of the activity.

This activity is enhanced if delivered by a judge, lawyer, or member of the judicial district's nomination committee or judicial performance committee. Otherwise, they should serve as a resource person.

Materials
Sufficient copies of the following handouts for class distribution.

Presentation

Introduction
Begin the class by introducing yourself to the students. As you do so, remember when you were this age and what you might like to know about other people.

Be sure to provide a brief explanation of why you are in the classroom on this particular day. If you have an official Law Day poster, hang it where all can see it. You might consider saying the following, in your own words.

Today, throughout the United States, we are celebrating Law Day. I believe it is very special because I work in the legal field and am very proud of the work I do. But, more importantly, it is special because it allows us to stop and think about our country, the United States of America, and the freedoms we all share. It is also special because this day provides us with an opportunity to talk about the laws that protect us and provide us these very special freedoms.

Establish a focus for the activity by asking the students to describe what they think of when they hear the words "independent courts" or "judicial independence." Allow for several responses. Explain that today you will be discussing this concept with them and asking them how it works in practice.

Activity
1. Begin by noting how rare judicial independence is in the most parts of the world.

About 15 years ago, judges in the Soviet Union often used a concept called "telephone justice" to render their decisions: They would call the Communist Party leadership and ask, "What does the party want in this case?" and then rule accordingly. Not surprisingly, judges, courts, and the law in general were held in very low regard in the Soviet Union.

In the not too distant past, Russian presidents often declared rulings by the highest court null and void because they did not like them. In South Africa, until its new Constitution took effect in 1994, the all-white, undemocratic Parliament had final say on the constitutionality of laws, not the courts. In Latin America, people often criticize their governments for having laws on their books that are not enforced by either the courts or the police.

2. Define judicial independence.

Judicial independence in a democracy means acting impartially, making just decisions, and being perceived to act without the undue influence of outside forces. Professor John Ferejohn of Stanford University maintains that an independent judiciary upholds three critical values for a democratic society:

(1) The rule of law: ensuring that every individual, of whatever social standing, is subject to the same protections and restrictions under the law and that powerful people do not manipulate legal proceedings;

(2) Constitutional integrity: preserving the ability of the Constitution to protect our freedoms and order our society by ensuring that one societal institution has the power to overturn laws that violate the Constitution; and

(3) Enforcement of the law: guaranteeing that legitimate laws will actually be enforced, not simply stated as theory.

Independent courts are an integral part of the U.S. system of government. Under the Constitution's system of checks and balances, one role of the courts is to restrain the legislative and the executive branches by ruling actions void when they violate the Constitution. This power was first exercised in 1803 in the case of Marbury v. Madison.

3. What is judicial independence in practice?

Distribute the handout on Independent Courts in the U. S. and give students a few minutes to read it. Then divide the class into several small groups and distribute the handout on the judicial independence activity. Ask each group to consider whether each "practice" violates judicial independence. Give them five to ten minutes to discuss the items and decide, by majority vote, whether or not each of these practices violates principles of judicial independence.

Then ask one group to report on its findings on situation one. Ask the other groups whether they concur. Ask why students reached the decision they did. Why did they think the situation violated, or did not violate, judicial independence? Then ask another group to report on its findings on situation two, and repeat the process until all situations have been fully discussed.

The discussion should clarify what judicial independence is, why it is important, and what does (or does not) violate it.

4. Conclude by looking at the selection of judges and how it impacts judicial independence.

Tell students that the methods by which judges are selected have a very strong impact on the ability of judges to be independent. The federal method of selecting judges is very conducive to judicial independence. The President nominates all federal judges for a life term, and they are confirmed or rejected by a vote of the U.S. Senate. They can only be removed by impeachment, which has happened very rarely in American history.

Though the federal process gains more prominence in the media, most jurists in the United States are state judges. There are more than 30,000 judges in the 50 states, 87 percent of whom—in 39 states—must face voters regularly in some type of popular election. The election structure differs among the states, though most judges are elected in nonpartisan contests, meaning that they do not run under the banner of one political party.

Distribute to students the handouts "Teresa Wants to Be a Judge" and "Judicial Selection Methods—An Overview." Ask students to read them, then pose the questions about where she should seek to become a judge. This should help students see the very different methods of judicial selection. The third question asks students to link these methods to the degree of independence Teresa would have under each system.

If there is time, you might go on to discuss some of the issues with judicial selection methods. Note the problems with even nonpartisan elections. Organizations such as the American Bar Association have criticized elections, saying they undermine the independence of judges. Recently, a report by the Committee for Economic Development (CED) concluded, "elective systems tend to undermine the independence and impartiality of the judiciary" and called on leaders to "take actions to initiate reforms that would eliminate judicial selection by election."

If the election system is to be changed, what is the alternative? Many believe that the nomination and confirmation system laid out in Article III of the Constitution is the best method of safeguarding judicial independence, but only a few states have moved from straight elections to a gubernatorial or legislative nomination process. Only one, Rhode Island, has gone to the federal system of lifetime appointments.

The most popular alternative to straight elections is known as the "Missouri Plan." Under the Missouri Plan, a nominating commission comprising lawyers and laypersons, often chaired by a respected judge, would propose the names of potential judges. The commission in some cases has the power to name the judges outright; in others, it sends a name or names to the governor of the state who makes the final selection. The system, often referred to as "merit selection," is supported by many who believe it results in a much higher caliber of judge than elections or straight appointments by a governor, who may appoint political cronies or campaign contributors.

Another aspect of the Missouri Plan that has been widely adopted is that of "retention elections." Generally this means that the name of a judge who was initially appointed through a nominating commission or another type of merit selection is placed on the ballot after the judge has served for a term. The voters then vote "Yes " or "No" to retain or not retain this judge for another term. The advantage of this system is that the judge does not have to run against another candidate. Yet the retention system does not eliminate all the dynamics of judicial elections—candidates still take positions and campaign for contributions.

This activity was written by Ed O'Brien, Executive Director of Street Law, Inc. It is adapted from a longer article that is posted on the ABA Division for Public Education website.


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