When Justice Fails: An Overview of Historic Threats to the Independence of the Judiciary

Historically, there have been instances in which a member of the judiciary gets it wrong.  They make decisions that break the cardinal rule of judicial service – to uphold and promote the independence, integrity, and impartiality of the judiciary and avoid impropriety and the appearance of impropriety.  The AJEI Sunday morning breakout entitled, “When Justice Fails: An Overview of Historic Threats to the Independence of the Judiciary” discussed those pitfalls and encouraged the audience to apply them to the face of the judiciary today.

The first part of the presentation discussed the result of some of the earlier missteps of the judiciary, with Federal Judge Kenesaw Mountain Landis taking center state.  First, in the underlying case appealed in Berger v. United States, 255 U.S. 22 (1921), Judge Landis made several comments regarding the defendants, who were of German descent.  Judge Landis stated, for example:

One must have a very judicial mind, indeed, not to be prejudiced against the German-Americans in this country.  Their hearts are reeking with disloyalty…. You are of the same mind that practically all the German-Americans are in this country, and you call yourself German-Americans.  Your hearts are reeking with disloyalty.

Berger appealed to the United States Supreme Court, arguing that because Judge Landis had expressed clear prejudice against German-Americans, he should be forced to recuse.  As Berger provided an affidavit with specific statements Judge Landis made, the United States Supreme Court agreed with Berger and directed Judge Landis to remove himself from the case.

Additionally, in 1920, Judge Landis was named the first Commissioner of Baseball, in an effort to “clean up” baseball after the 1919 Black Sox scandal.  Many suggested Judge Landis would have a conflict of interest with his chosen outside employment because of the hefty salary that came with the position and the possibility of baseball-related matters that may come before the court.  Judge Landis countered that baseball was an American interest and thus that conflict would not exist.  In 1921, the ABA censured Judge Landis for accepting the position as Commissioner, citing an appearance of impropriety.  Judge Landis resigned as a federal judge in 1922. 

In response to Judge Landis and out of necessity for some sort of order in judicial conduct standards, United States Supreme Court Chief Justice William Howard Taft enacted the Canons of Judicial Conduct in 1924 to address any lack of confidence in the judiciary due to actions taken by a member of the judiciary.  Curiously, the Canons did not bar outside employment despite the ABA’s censure of Judge Landis for that activity in 1921.  Even more interesting, as most know, is the fact that the highest court in the United States did not adopt a code of conduct until November 13, 2023, in response to criticism regarding conflicts of interest.

Judge Landis was not the first to spout inappropriate comments from the bench.  In Dred Scott v. Sandford, 60 US 393 (1857), Chief Justice Roger B. Taney, delivering the opinion for the Court, stated, regarding African Americans:

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.

Id. at 407.  Similarly, Supreme Court Justice Oliver Wendell Holmes stated in Buck v. Bell, 274 US 200 (1927), a case about state sterilization laws:

Carrie Buck is a feeble minded white woman who         was committed to the State Colony…. She is the daughter of a feebleminded mother in the same institution, and the mother of an illegitimate feeble minded child….

Three generations of imbeciles are enough.

Id. at 205, 207.  While both cases are now considered a blemish in the United States’s storied history on social issues, they were both damaging to the parties they affected and the general American sentiment.  After all, what are people to do when an impartial makes statements that reflect possible ugly prejudices held at the time?

While the Berger, Dred Scott, and Buck decisions illustrated the court’s feeling about the litigants, also problematic and seen more today are “benchslaps” where a court comments negatively on counsel.  On example of benchslapping presented the court’s opinion of the quality of counsel before it:

Both attorneys have obviously entered into a secret pact complete with hats, handshakes and cryptic words to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed[.]

Bradshaw v. Unity Marine Corp., 147 F.Supp.2d 668, 670 (S.D. TX 2001).  While not all attorneys are created equal, the panel felt the seemingly clever benchslap examples will continue to erode the public’s confidence in the judiciary.

The panel then moved on to one of the foremost issues in the minds of all members of the judiciary – violence against judges and justices.  While violence against the judiciary is nothing new – Judge John P. Slough was killed in 1867 in a politically-charged gun battle – it has increased in recent years.  For example, in 2011, Judge John Roll was shot and killed during an event and Judge Joan Humphrey Lefkow, whose husband and mother were murdered in their home by a former litigant before Judge Lefkow.  These tragedies are not examples of when justice failed but may be indicative of the actions people will take when they believe it has.

Finally, the panel spoke briefly about another action that has been taken when a third party feels a member of the judiciary has crossed the line when making decisions or publicly commenting.  Shortly after the Dred Scott decision was released, it was discovered that Justice John Catron and Justice Robert Grier both sent a copy of the Dred Scott decision to President Buchanan before it was released to get President Buchanan’s input.  President Buchanan endorsed the decision prior to the case handdown.  While there was no action at the time, in retrospect this was likely an improper communication and impingement upon the Constitutional separation of powers.  Much later, during the impeachment 1970 hearings for United States Supreme Court Justice William Douglas, then-House Minority Leader Gerald R. Ford states, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”  Over fifty years later, this is still true.

“When Justice Fails” provided the audience with a set of cautionary tales.  The reminder of these judicial atrocities were timely and relevant considering current public sentiment towards the judiciary today.  It is undisputed that the judiciary should strive to be above reproach as to deserve the respect of the public, and this panel highlighted times when different decisions were made, and how better decisions can be made going forward.