While we understand federal judges are nominated by the president and confirmed by the Senate to lifetime appointments, the methods of selecting judges in state courts differ widely. Almost half of our states use either partisan or nonpartisan elections to elect judges. Most of the others used a merit-based system modeled on the Missouri Plan, which includes retention elections as part of the method of appointing and retaining judges.
The lifetime appointment of Article III judges is the key bulwark protecting the federal judiciary’s independence from political interference. In arguing for its adoption in the Federalist 78, Hamilton described the judiciary as “incontestably . . . the weakest of the three departments of power.” He further noted the judiciary has “no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.” Having neither force nor will to confront controversies, it instead must wait for cases and controversies to come before it where all it can do is exercise judgment. Moreover, even when this judgment is exercised, courts must still depend on the aid of the executive branch to enforce their judgments. Thus, the judiciary occupies a precarious position, and while it is independent and co-equal, it is still, in a sense, beholden to the other branches.
As a result, our society must be ever mindful of attacks and other attempts to undermine the judiciary. The polarized politics of the other two branches of government can corrupt the judiciary if we do not defend it. We are all familiar with the very partisan fights over the confirmation of U.S. Supreme Court justices and other federal judges. Moreover, in the recent past, the former president called the court system “broken and unfair,” repeatedly attacked judges with whom he disagreed by calling them biased, and referred to some as “Obama judges” or “so-called” judges. These attacks are detrimental to the concept of an independent judiciary, and they must be challenged immediately and forcefully when they occur, especially when they are originating from the highest levels of our government.
Ultimately, we have an independent judiciary because we want to have an independent judiciary. We owe a great debt to Justice John Marshall for helping to give meaning to the words in the Constitution and to define the power and stature of the Supreme Court in Marbury v. Madison. Justice Marshall’s work on the early Supreme Court went a long way toward creating a mutual understanding or social contract in our society that made certain the judiciary would truly be a separate, co-equal branch of government. However, this mutual understanding or social contract can be eroded and can take with it the rule of law. The recent attacks noted above as well as the events of January 6, 2021, have demonstrated that none of our institutions are invulnerable to attacks.
Even more concerning, as noted above, state judiciaries are less structurally protected from political interference because many of them use some form of election to select judges, and their judges, for the most part, do not receive lifetime appointments.
However, the public’s relative familiarity with the judiciary also creates an opportunity. The judiciary is probably the branch of government with which the most citizens come into direct contact most frequently. While many of our neighbors may not ever meet their elected representatives, they are very likely to enter into a federal, county, or municipal court. These courts handle a tremendous amount of business in which the public participates, including filing or defending a lawsuit, contesting a fine or paying a ticket, participating in jury duty, getting married, or even being accused of a crime. Millions of people come into our courthouses nationwide on a daily basis to transact some sort of business. If they are treated poorly or unfairly, that experience will have a significant effect on how they view the judiciary.
Thus, to begin, members of the judiciary should strive to treat everyone before them fairly and respectfully. Of course, courts should speak mostly through their opinions, where they should do their best to explain sometimes difficult legal concepts to the parties and public. Beyond those duties though, it is also important for judges to be visible in the community and work to educate members of the community about the judiciary and its role in our government. In particular, judges should attempt to educate the public about the ways in which the judiciary differs from the other two branches.
As alluded to above, because so many judges are selected through elections, a political process by its very nature, it is important to educate voters on the ways judicial elections are, or ought to be, fundamentally different from other elections. Ideally, members of the executive and legislative branches are elected based on which policies they advocate. Then they are re-elected or not based on how successful they have been in enacting or legislating policies consistent with the platform on which they ran. However, when judges go before voters, the voters ought to ask themselves not whether they agree with the policies these candidates will advocate, but rather they should ask, “will this candidate be willing to put his or her personal beliefs aside and make decisions according to the law?”
This is not an easy question to contemplate. Unlike members of the executive and legislative branches, judges are not free to advocate for whatever policies they choose; instead, they must make decisions consistent with the law. As a result, sometimes judges have to make unpopular decisions. The rule of law does not mean everyone always gets the result they want. It means there are rules governing how decisions can be made. Judges cannot short-circuit the process to do what they think is right or fair. They must submit to the process to promote the fairness of the system rather than the individual case.
Because of the structural precariousness of the judiciary and the added challenge that judges are sometimes called on to make these difficult or unpopular decisions, the judiciary must take a leading role in educating the public on our government and the judiciary’s proper role in it. Of course, this task does not fall solely on judges—it is also an important aspect of what bar associations ought to be doing. Who better than lawyers on both sides of difficult or unpopular issues to advocate for the courts and preserve their ability to decide such issues according to the law without undue political or economic pressure?
The end goal we all seek is courts that will fairly decide issues before them according to the law without external pressures. In fact, as noted above, our liberty depends on the judiciary being free from such interference. As Hamilton noted, “[l]iberty, on the other hand, can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.”
The existence of an independent judiciary cannot be left to a mutual understanding or a long ago–created social contract. Recent events have shown how easy it is to breach such contracts. The only way to adequately protect the independence of the judiciary is to redouble our efforts to teach the populace the necessity of protecting the independence of the judiciary. The continued existence of an independent judiciary relies on an educated populace to understand the importance of these concepts when it fulfills its role in selecting judges. Thus, the judiciary’s investment in civics education will continue to protect and maintain “the citadel of the public justice and the public security,” that is, an independent judiciary. Under these conditions, liberty and the rule of law will be allowed to flourish.