chevron-down Created with Sketch Beta.

Independence of the Judiciary

Support Efforts to Preserve Judicial Independence and Increase Public Confidence in the Federal Courts; Oppose Efforts that Undermine the Independence of Judges

Preserving and protecting the independence of the federal judiciary has long been a core mission and concern of the ABA. It therefore is not surprising that survey respondents listed it as the top legislative and governmental priority of the Association for the 118th Congress.

The most pressing and serious threats to judicial independence today include the growing perception that the federal judiciary has become more politicized, which has resulted in a sharp decline in public confidence in the courts, and the escalating violence and threatening rhetoric directed at our judges who render unpopular decisions. The 117th Congress enacted legislation to enhance security for the Justices of the Supreme Court and their families, and a more comprehensive bill, the Daniel Anderl Judicial Security and Privacy Act, to restrict the disclosure and publication of personally identifiable information of all federal judges. Although these ABA-supported measures will significantly increase the security of the federal judges and protect impartial decision-making by helping to prevent horrific violence against judges and family members, they do not alter public perceptions. As judges are called upon to resolve disputes involving many different controversial societal issues, the federal courts – especially the Supreme Court – will once again be scrutinized through the lens of partisan politics.

The striking loss of public confidence in the courts over the past few years is an issue of great concern to the ABA, as evidenced by the recent creation of the ABA President’s Cornerstones of Democracy civics education initiative and the Task Force on Law, Society, and the Judiciary. The 117th Congress also took notice and addressed the problem by considering legislation to impose a code of ethics on the Supreme Court, tighten judicial disclosure loopholes, bring greater transparency to outside funding sources regarding amicus briefs and judicial nominations, and more. The ABA adopted policy during its recent Midyear Meeting urging the addressing a code of ethics for Justices of the Supreme Court  to adopt a  binding code of judicial ethics.

In addition to expecting some of these judicial transparency measures to be reintroduced in the Senate, which retained its fragile Democratic majority, the Republican House is expected to resurrect bills introduced in previous Congresses that seek to curtail the jurisdiction of the courts, force division of the Ninth Circuit into two circuits, and impose procedural rules without adhering to the Rules Enabling Act process. While it is unlikely that any of these or similar proposals will succeed in gaining traction in both chambers, we will remain vigilant in advancing ABA policies to preserve and strengthen the independence of our courts.

The ABA also remains focused on the need to strengthen the decisional independence of the administrative judiciary. Therefore, in accordance with recently adopted policy, the ABA will work with the 118th Congress to enact legislation to require agencies to use merit-based hiring principles that preserve the adjudicative independence of administrative law judges and administrative judges.

Support Filling Judicial Vacancies Promptly and Providing Adequate Resources for the Federal Courts

The Federal Judiciary requires sufficient resources to perform the core functions assigned to it by the Constitution and Congress. This requires Congress to provide adequate funding for the day-to-day operations of the Judicial Branch and court security programs, fill judicial vacancies promptly, and authorize a sufficient number of judgeships so that justice can be dispensed in a timely manner.

Congress generally has been respectful of the fiscal needs of the federal courts during its annual appropriations process. However, this could change during the 118th Congress, given the recent announcement by the Speaker of the House that the House Republican majority plans to cap spending in FY 2024 at FY 2022 levels. Such a cap would translate to a $130 billion cut, most, if not all, of which is expected to come from the discretionary side of the federal budget. The ABA will continue to advocate for adequate funding for the federal courts and oppose any effort to deny the Judicial Branch of government the resources it needs to operate efficiently.

As of February 28, 2023, there are 86 Article III vacancies and 24 future vacancies on the federal bench. Every vacancy needs to be filled promptly and in a deliberative fashion. While we do not anticipate a problem emerging in the 118th Congress regarding the pace of nominations or the diversity of judicial nominees, the ABA stands ready to advocate on these critical issues, should the need arise.