We use and hear the term “judicial independence” a lot, but what does it mean? The judicial branch, unlike the executive and legislative branches, is designed to be independent of efforts to influence its decisions other than through the established judicial process.
Judges apply the facts to the law. They do not decide cases because they personally favor one party over another or based on how they personally feel about an issue. This does not mean that judges should be free of any criticism that results from decisions they make. But, unlike the other two branches, judges are not free to explain their decisions, except in the decisions themselves. Judicial independence is threatened when judges fear reprisals because of the popularity of their decisions. So where are the lines? How do we protect independence?
Chief Justice John Roberts has publicly responded to criticisms of judges from both sides of the political aisle. In response to attacks on judges for a judicial decision in 2018 he said, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. . . . What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.” Recently, in front of a rally on the steps of the United States Supreme Court in advance of oral arguments regarding a case involving abortion issues, the Senate Minority Leader said, “I want to tell you, Gorsuch; I want to tell you, Kavanaugh: You have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.” Chief Justice Roberts responded, “Justices know that criticism comes with the territory, but threatening statements of this sort from highest levels of government are not only inappropriate, they are dangerous. All members of the court will continue to do their job, without fear or favor, from whatever quarter.” The Minority Leader later said he “shouldn’t have used the words” he did.
Just as Chief Justice Roberts said, judges must “do their job without fear or favor.” That is what the judicial branch was designed to do. That is the obligation all judges have. When judges are attacked for their decisions, our system of justice is challenged. I do not suggest that judges are immune from criticism or that unpopular decisions cannot be criticized. When judges are concerned that they are being attacked and do not believe that they can ethically and directly respond to the attack, the American Bar Association and state and local bars have mechanisms in place to respond. Recently, Judy Perry Martinez, President of the American Bar Association, issued the following statement in response to what she referred to as the “threats against Supreme Court Justices” that I described above:
The American Bar Association is deeply troubled by today’s statements from the Senate Minority Leader threatening two sitting justices of the U.S. Supreme Court over their upcoming votes in a pending case. Whatever one thinks about the merits of an issue before a court, there is no place for threats—whether real or allegorical.
Personal attacks on judges by any elected officials, including the President, are simply inappropriate. Such comments challenge the reputation of the third, co-equal branch of our government; the independence of the judiciary; and the personal safety of judicial officers. They are never acceptable.
As judges are confronted with attacks that threaten their independence they can ask our bar associations to respond on their behalf as the American Bar Association did. And, in the meantime, as Chief Justice Roberts said, “judges must do their job without fear or favor.”
