It's elementary high-school civics that we have three branches of government, which regulate and limit each other's power by a system of checks and balances. Congress makes the laws. The President enforces them. And the Judiciary interprets them. Sounds simple, but of course, it often is not. The main way that the judicial branch can exercise its constitutional power to check the other branches is by declaring statutes or executive acts unconstitutional, though sometimes we might check the political branches in a gentler way, merely by interpreting a statute in light of constitutional values or by ruling that a regulation or executive act is not authorized by statute. This also means that we have the power to make the other two branches really, really angry. And if we never did so, we probably would not be fulfilling our Constitutional duty.
But the judges cannot play their role if they have to worry that they will be subject to retaliation for our judicial acts. As Madison put it-and he, being the Father of our Constitution, should be heard-an independent judiciary, is "an impenetrable bulwark against every assumption of power in the Legislative or Executive." Well, impenetrable may be putting it a bit strongly. But the basic idea is sound: If you believe, as Madison and I do, that the courts are important guardians of constitutionally guaranteed freedoms in our common-law system, you know that the system breaks down without judicial independence.
Why is judicial independence important? Because we, like the other branches, have a Constitutional task as well as a Constitutional power. Congress must implement the will of the people as it creates the laws. The Executive must faithfully discharge these laws. And we must faithfully and neutrally interpret them, with only reason, precedent, text and experience as our guides. Courts are designed to be places of reason, argumentation, and fidelity to the laws, where the people may bring their disputes, from the monumental to the mundane, and know that they will be fairly heard. In order to be fair and faithful to the law, we must not follow the prevailing winds, or shrink from our duty because the path of the law leads us to an unpopular place.
Of course, judicial independence is not always easy to define. Judges can be subject to discipline for legitimate reasons, and the political branches properly control, to some degree, the jurisdiction and political makeup of the federal courts and the various state courts. Still, some techniques for influencing the judiciary are pretty obviously out of bounds. For instance, suppose, during a period of stormy relations between the White House and the Chief Justice, the President's bodyguards killed the Chief Justice's pet cat. Or suppose the executive branch threatened to cut the water supply to the Supreme Court building to prevent the Court from meeting and making anti-Presidential statements, or the Council of Ministers tried to evict the Constitutional Court from its offices. The first two events actually happened in the early- to mid-1990s in Russia under Yeltsin, and the third happened in Bulgaria in 1995. I think we can all agree that is not judicial independence.
Judicial independence doesn't happen all by itself. It's tremendously hard to create, and easier than most people imagine to destroy. Our tradition of judicial independence began in England, fourscore or so years before our Constitution was adopted. That was when the British Parliament passed the Act of Settlement of 1701, which limited the succession to the British throne to Anglicans, but also, more importantly for us, provided that judges would hold office and draw their salaries during good behavior. We have Article III, which says basically the same thing, except without the part about the Anglicans. As you can read in the Federalist Papers-it's anonymous, but I can tell you this part was written by Hamilton-"The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing." This is why, says Hamilton, judicial independence is especially important in the American system.
Some concrete examples can help make clear what Hamilton was talking about. Perhaps the most important one in the contemporary era is Brown v. Board of Education, which held that the Equal Protection Clause of the Fourteenth Amendment forbids racially segregated public schools. Brown was a decision of principle, and it had the support of a unanimous Court. On the day that it was published, May 17, 1954, Associate Justice Felix Frankfurter wrote a note to Chief Justice Earl Warren, pronouncing that this would be "a day that will live in glory," and a "great day in the history of the Court, not least for the course of deliberation which brought about the result."[1]
The Court put off deciding how to implement the result until the next year, inBrown II, but that did not defuse the anger that the decision would cause. I don't have to remind you what the response was when Brown was finally implemented. Some states refused outright to comply. It took the National Guard to integrate the schools of Little Rock, Arkansas. And of course the resistance was not just at the state level. Many of the black students who were at the front lines of desegregation were treated miserably, and hounded out of the schools that they had fought so hard to get into.
Today, much has changed. Our schools are no longer segregated as a matter of law - although many of them are still segregated as a matter of practice. But one thing is certain: It is no longer possible to run for office or be nominated for a judgeship in this country and to oppose the idea of integrated education. But it took the commitment of almost all Americans to this constitutional principle to bring this about.
United States v. Nixon offers another important example of judicial independence, this time in the name of separation of powers and governmental transparency rather than civil rights. This decision was also unanimous. But what makes it noteworthy is that three Justices in particular put their name to it - three members of the Court who had been appointed by President Nixon.[1] A district court had ordered the President to turn over tape recordings of his conversations with aides, in a criminal trial where several of his staff members were charged with charges such as conspiracy to obstruct justice and to defraud the United States. The President claimed executive privilege and appealed the lower court's order all the way up to the Supreme Court. And you know how the story ends: The Court ordered to President to comply with the subpoena, and he did. And a few days later, he resigned from the Presidency.
A lesser - but no less interesting - example comes from the case of Hepburnv. Griswold, which was penned by former Chief Justice Salmon P. Chase.[2] This case was a constitutional challenge to the Greenback laws, which created a national paper currency. The Legal Tender Act was passed during President Lincoln's tenure. The man largely responsible for it was the Secretary of the Treasury, Salmon P. Chase. Chase helped design the law and push it through Congress (and even put his own face on the $10,000 bill! Perhaps because he had political ambitions.)
Lincoln considered paper money essential to the Civil War effort, but the law was constitutionally controversial at the time. So controversial, in fact, that when Lincoln had to appoint a new Chief Justice of the United States, he wanted to find a man that could be trusted to uphold the law. So he selected none other than Salmon P. Chase.[3] This must have seemed like pretty safe bet, but Lincoln was in for a surprise. Once Chase was on the Supreme Court, he saw the issue rather differently. He became one of the deciding votes to strike down the Greenback laws as unconstitutional. Chase was caught on the wrong side of history on this one - his decision was overturned the next year, and no doubt for the best. Nonetheless, it stands as a striking example of judicial independence, and a warning to those who pick judicial nominees with a particular political issue foremost in mind.
Fortunately, most of the time, politicians don't challenge the courts to come enforce their judgments themselves, as Andrew Jackson did in the wake of the Supreme Court's decision in Worcester v. Georgia. But the value of judicial independence is a lesson that some of our current leaders have not learned. In a recent speech at a conservative conference, a prominent House leader said that "[j]udicial independence does not equal judicial supremacy." In particular, he faulted the courts for their decisions on abortion and school prayer and for improperly citing international law. This was after the Terri Schiavo case, when the federal courts applied Congress's one-time-only statute as it was written, but, alas, perhaps not how the Congressman wished it had been written. In response to this flagrant display of judicial restraint, the Congressman blasted the courts for ignoring Congressional intent. "These are not examples of a mature society," he said, "but of a judiciary run amok." Speakers at that conference advocated "mass impeachment," stripping the courts of jurisdiction to hear certain cases, and using Congress's budget authority to punish offending judges.
Mass impeachments-now that is something we have not heard suggested until lately. Impeachment for a judge's judicial acts has been politically taboo since the failure of Justice Samuel (not Salmon) Chase's impeachment back in 1805. Jurisdiction-stripping proposals are nothing new, though their ancient use is no defense. In the 1950s, the proposals suggested stripping federal courts of jurisdiction over desegregation and domestic-security cases; in the 1960s, the controversy was over the admissibility of confessions in criminal cases; in the 1970s, it was over busing; in the 1980s, it was about abortion and school prayer; and now we have the Pledge of Allegiance and gay marriage thrown into the mix as well. Congress has never given Article III courts as much jurisdiction as the Constitution allows, and quite frankly, most federal judges think we have quite enough cases as it is. Article III allows Congress to make exceptions to the Supreme Court's jurisdiction, and even abolish lower courts entirely. The merits of all these measures are debatable-as long as they're not retaliation for past federal court decisions.
It gets worse: In all the federal courts, including the Supreme Court, death threats have become increasingly common. Judge Greer, who handled the Schiavo case for over a decade, has received menacing e-mails and death threats. We've seen this before-Justice Hugo Black often wore a chest protector provided by the Secret Service when he visited Birmingham; my former colleague Harry Blackmun got death threats because of Roe v. Wade, and his window was once shattered by a gun shot. It doesn't help when a high-profile senator, after noting that decisions he sees as activist cause him "great distress," suggests there may "a cause-and-effect connection" between such activism and the "recent episodes of courthouse violence in this country."
These comments have all come from Republicans, but of course Republicans aren't the sole offenders. A former Democratic president complained, in words that sound much like current congressional complaints, that "the Court has more and more often and more and more boldly asserted a power to veto laws passed by the Congress and by state legislatures. . . . The Court has been acting not as a judicial body, but as a policymaking body." He accused the Court of "improperly set[ting] itself up as a third house of the Congress-a super-legislature . . . -reading into the Constitution words and implications which are not there, and which were never intended to be there."
Like some members of Congress, this former president paid lip service to judicial independence, saying, "I want-as all Americans want-an independent judiciary as proposed by the framers of the Constitution"-but made clear that he did not mean "a judiciary so independent that it can deny the existence of facts which are universally recognized." He believed in "a government of laws and not of men," but believed that this meant "we must take action to save the Constitution from the Court and the Court from itself." This president's plan was "simply this: whenever a judge or justice of any federal court has reached the age of seventy and does not avail himself of the opportunity to retire on a pension, a new member shall be appointed . . . ." I'm sure you all remember, that was Franklin Roosevelt's fireside chat of March 9, 1937. He's the fellow on the dime.
Now President Roosevelt was in many ways a great and important president, but surely this was not his finest hour. I am not against limiting judicial terms, although the Constitution does not provide for such for federal judges. A retirement age of, say, 75 or so might be reasonable. Anyone who has read some of my opinions knows I do not take a formalistic approach to these questions, and it takes more than reciting the mantra of "judicial independence" to get me worked up. But, as I said before, I am against judicial reform driven by nakedly partisan, result-oriented reasoning.
I close today with a simple message, which unfortunately also seems to be a timely one: Judicial independence is a bedrock value of our constitutional system. Without out it, there would have been no Brown v. Board of Education. With it, we know that there will always be at least one place of refuge where the Constitution can be enforced even if it angers the other branches of our government. We must therefore be ever vigilant against those who would strong-arm the judiciary into adopting their preferred policies, or who seek to undermine the ability of the courts to play their constitutionally ordained role.
This is where you come in. There is no natural constituency for judicial independence. And although judges have a bully pulpit in the courtroom, we are largely disconnected from the media and the public. We rely on ordinary citizens to defend our constitutional structure. And we rely on responsible journalists to get the facts before the people, and to look beyond the sloganeering that characterizes so much of our political culture today. Criticize judges when mistakes are made, but do not disparage the difficulty of the judicial task, or undermine the bedrock requirements for judicial independence.
If we are to be, as John Adams once said, a nation of laws rather than a nation of men, then we are a nation in need of its judges. It is for you and other Americans to be dedicated to the promise and practice of our constitutional heritage, which makes the courts - armed with the power of judicial review and protected by judicial independence - part of the people's arsenal to enforce the rule of law and protect individual freedoms.
End Notes
[1] [NB: Then-Associate-Justice Rehnquist was also a Nixon appointee, but he did not participate in the case.]
[1] Letter available at the Library of Congress, and reproduced at https://www.loc.gov/exhibits/brown/brown-brown.html.
[2] Hepburn v. Griswold, 8 Wall. 603 (1870).
[3] William J. Rehnquist, Remarks of the Chief Justice: My Life in the Law Series, 52 Duke. L. J. 787, 793 (2003).
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Herb Block is among the world’s best known and most admired political cartoonists. Born on October 13, 1909, the native Chicagoan spent his 72-year career fighting against abuses of the powerful.