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A.: ORIGINS OF JUDICIAL INDEPENDENCE - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government [1989]

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Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


A.

ORIGINS OF JUDICIAL INDEPENDENCE

Although the judiciary was clearly a separate branch of government in England by the Middle Ages, it was not until the latter part of the seventeenth century that it achieved lasting independence. Much of the credit for the establishment of an independent judiciary (and Parliament) goes to Sir Edward Coke, or Lord Coke as he was known by his contemporaries. Coke, we will recall, was Queen Elizabeth’s Attorney General and Chief Justice of both the Court of Common Pleas and the Court of King’s Bench under James, first Stuart King of England.

A handsome country gentleman with considerable wealth, Coke was the personification of English law. On the courtroom floor, he could be raucous, witty, and ruthless. As Judge and as Speaker of the House of Commons, he risked his life for principles that are now embodied in our Constitution: a prisoner’s right to public trial and the writ of habeas corpus, the right of the accused against self-incrimination in a court of law, and the right not to be jailed without cause shown. When Coke was seventy, James I imprisoned him in the Tower of London for championing these rights, complaining that “he had become an oracle amongst the people.” In 1628, at the age of seventy-six, Coke led the fight in Parliament for the Petition of Right. “Sir Edward Coke never set foot on American soil,” observed Catherine Drinker Bowen in her biography of this legal giant. “Yet no United States citizen can read his story without a sense of immediate recognition. In these parliamentary struggles, knights, citizens and burgesses fought not for themselves alone but for States as yet unformed: Pennsylvania, Virginia, California. In Westminster courtroom battles over procedure, jurisdiction, ‘right reason and the common law,’ constitutional government found its way to birth. When the time came we changed the face of this English constitution; amid the sound of guns we repudiated what we hated, adapted what we liked. Yet the heritage endured.”

The famous Case of Commendams, a jurisdictional dispute involving the power of the King to grant ecclesiastical offices, illustrates the courage of Lord Coke in defending the principle of judicial independence. In June of 1616, King James I summoned the common law judges to his Whitehall palace (now the headquarters of the British bureaucracy). He was angry with them because, in defiance of his command to halt the proceedings of the case, the judges had refused. In a letter to the King, drafted by Coke, the judges had explained that their oaths of office compelled them to go ahead with the trial. They now stood before the King, trembling in fear of their lives. With a violent gesture, James ripped the letter in half. All twelve judges fell on their knees and begged humble pardon. The “form” of their letter, they confessed, had been wrong.

But Chief Justice Coke remained true to his convictions. Still on his knees, he raised his face to the King. “The stay required by your Majesty,” he said, “was a delay of justice and therefore contrary to law and the Judges’ oath.” “Mere sophistry,” bellowed the King. As the Judges cowered at his feet, James asked each Judge what he would do if the King ever again told the Court to stay proceedings. Each replied that he would do “as His Majesty commanded.”

When at last the King turned to Coke and asked him what he would do, the Chief Justice answered: “He would do that should be fit for a Judge to do.” It was a statement never to be forgotten, and because of it, Coke was removed from office. It was ambiguous enough to save his head, however, and in time he was vindicated. By the end of the seventeenth century, the judges had achieved full independence, and the English Judiciary today, though considerably less powerful than its American counterpart, is no less independent.

It was often difficult for early American judges to retain their independence also, especially in the period immediately following the American Revolution. Violations of judicial independence occurred not at the national level, for there were no national courts under the Articles of Confederation. Rather, they occurred under the new State constitutions first adopted in 1776, which were influenced in varying degrees by the principle of legislative supremacy. What early State court judges often feared was not the encroachment of the executive branch, for the office of governor was usually weak. The principal threat to judicial independence was the powerful legislative assembly.

Ignoring the concept of separation of powers, State legislatures sometimes treated State courts as mere agencies of the legislature, as if they were personally accountable to the legislators. Committees of the legislature might summon judges and interrogate them. Occasionally, legislatures actually interfered with court proceedings, reversed court decisions, reduced the judges’ salaries, and removed judges arbitrarily from office because of disagreement with their views. As late as 1808–1809, in Ohio, three supreme court justices, three presiding judges of the Court of Common Pleas, all of the associate justices of the courts of Common Pleas (more than 100 in number), and all of the justices of the peace were removed from their offices by a single resolution of the legislature.

Much of this was attributable to democratic excesses. The will of the people in many instances was considered omnipotent, and the legislature was simply carrying out the popular will. Hence, a number of early State legislatures did not hesitate to interfere with the traditional functions of the courts. During Shays’ Rebellion in 1786, people in Massachusetts prevented the courts from functioning and demanded that all inferior courts be abolished. Similar notions were advanced in New Hampshire in the early Republic. In Vermont, courthouses were set afire; and in New Jersey debtors nailed up the doors of courthouses and irate mobs attacked lawyers and judges in the streets.

The Framers of the Federal Constitution, profoundly alarmed by these developments, endeavored to provide the nation with a truly independent judiciary at the Federal level. But we may ask: independent of whom? The answer is not as easy as it might appear, for the independence of the Federal courts is not absolute. The Federal Judiciary, like Congress and the President, is a part of our separation of powers and checks and balances system. Congress and the President not only have certain powers to “check” the Judiciary, but also share with the Supreme Court the right and the duty to interpret the Constitution. The arrangement carefully constructed by the Framers is a complicated one, often misunderstood and in need of careful examination if we are to understand the role of the courts in our political system.

In general, Federal judges are independent of Congress, the President, the States, and the people. Strictly speaking, however, their independence is limited. They are not self-appointed, and most of the power they exercise is conferred by Congress. Article II, Section 2 of the Constitution authorizes the President, by and with the consent of the Senate, to appoint “Judges of the Supreme Court and all other officers of the United States.” Members of the Supreme Court and all Federal judges who sit on a lower Federal court that exercises the judicial power under Article III of the Constitution are thus classified as “Officers of the United States.” They are informally known as “Article III” judges and the courts upon which they sit are called “constitutional” courts because they deal with issues arising under the Constitution.

These distinctions are necessary to avoid confusion with other kinds of Federal judges who serve on other kinds of Federal courts. Referring back to Article I, Section 8 of the Constitution, which enumerates the delegated powers of Congress, we note that Clause 9 authorizes Congress “To constitute Tribunals inferior to the Supreme Court.” Congress has frequently exercised this power to create “legislative” courts, such as territorial courts and the U.S. Court of Military Appeals. The President appoints the judges to these courts, but Senate confirmation is not mandatory and the judges do not enjoy the same degree of independence as Article III judges. Instead of serving “during good behavior,” for example, they serve for specified terms and then must leave office when their term expires. Their responsibility is to carry out the will of Congress, not to exercise the judicial power.

It may thus be seen that both the President and one branch of the legislature decide who shall sit on a constitutional court. Once the appointment has been agreed to by the Senate, however, the President ceases to have any direct control over the personnel of the Judiciary.

Whereas judicial independence of the executive is considerable, we find that the Federal Courts are potentially at the mercy of Congress. Primary control of the Judiciary rests with Congress, and its powers over the Courts are far-reaching. We noted earlier that if Congress had the will to do so, it could constitutionally reduce the entire Federal Judiciary down to one judge—the Chief Justice of the Supreme Court—leaving the Supreme Court virtually powerless. This has never happened, of course, but it should be borne in mind that the Framers of the Constitution gave Congress sufficient power to check an arrogant judiciary.

In the first place, it is Congress, not the Constitution, which creates the Federal Judiciary. Article III, Section 1 provides simply that “The Judicial power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” By these words, the Supreme Court is the only Federal Court that is required by the Constitution. Congress is free to create whatever lower Federal courts it pleases, and it may even abolish those already in existence. This first occurred in 1801, when the Jeffersonian Republicans abolished a number of Federal district courts that the administration of John Adams had established and packed with loyal Federalist party members.

Having once created the courts, Congress decides how many courts and judges there shall be, where they shall be located, what their salaries and administrative expenses shall be, what their duties shall be, and most importantly, what powers they shall exercise. Congress even has a voice in who shall be appointed to these courts and has sole authority in deciding who shall be removed.

With respect to the number of Federal judges we shall have, and what their qualifications shall be, the Constitution is silent. We know only that there must be a Supreme Court, because it is named in Article III, and that we must have a Chief Justice, because he is specifically mentioned in Article I, Section 3 as the officer who must preside over the impeachment trial of the President. During the course of American history, Congress has authorized as few as five and as many as ten Justices of the Supreme Court. For more than a century the number has remained constant at nine, including the Chief Justice. Today, the number of inferior Federal judges, also determined by statute, exceeds 700.

To protect the independence of the judges, Article III, Section 1 further provides that they shall serve during good behavior, and that Congress may not reduce their salaries while they are in office. The term “good behavior,” inherited from the English Constitution, means—in practical terms—for life or as long as the judge wishes to serve since Federal judges have been removed from office only through the impeachment process. Although a number of inferior Federal judges have been impeached and convicted—the most recent being in 1986—no member of the Supreme Court has ever been removed by this method. Justice Samuel Chase was impeached in 1805, but the Senate failed to convict. However, at least one member of the Supreme Court—Justice Abe Fortas—resigned rather than face impeachment proceedings.

On what grounds may a Federal judge be impeached? The Constitution is not clear on this point. On the one hand, Article II, Section 4 states that “all civil officers” may be removed if they are impeached and convicted of treason, bribery, or other high crimes and misdemeanors. Since Federal judges are civil officers, it would seem to follow that the impeachment clause applies to them. The term “high crimes and misdemeanors” is also vague and undefined. In England, it comprehended criminal conduct as well as that not constituting an indictable offense, such as maladministration or abuse of office. The Senate apparently followed this interpretation during the trials of two Federal judges in this century who were convicted on articles of impeachment which charged them with misconduct that did not amount to a violation of a criminal statute. The argument has been made in other impeachment trials, however, that to be impeachable, the conduct complained of must constitute an indictable offense.

On the other hand, it has also been argued that Federal judges may be removed by means other than impeachment. They serve only during “good behavior,” and it is therefore open to Congress to define “good behavior” and establish a mechanism by which judges may be removed. By this reasoning, Congress could remove Federal judges either by impeachment (for high crimes and misdemeanors) or by some other method (for “bad” behavior). Legislation has frequently been introduced to effect this idea since the 1930s, but it has never passed. All the same, Congress has adopted legislation which authorizes a judicial conference to discipline and incapacitate inferior Federal judges. The Supreme Court has declined to rule on the constitutionality of this procedure, which allegedly conflicts with the separation of powers. Whether Federal judges may be removed by a non-impeachment method is indeed a question of considerable interest that could ultimately place the Supreme Court in the awkward position of having to rule on its own tenure.

By prohibiting Congress from reducing the salaries of Federal judges, the Framers sought to protect them from retribution and revenge for handing down unpopular opinions, and to discourage legislative interference while a case was in progress. An angry Congress bent upon punishing a judge or group of judges financially can at best freeze the salaries of all the judges—an unsatisfactory and indiscriminate means of judicial control that has rarely been advocated. Designed to secure the independence of the judges, the prohibition against the diminution of judicial salaries has presented little controversy or litigation. Congress is also prohibited from reducing the salary of the President while he is in office, but unlike the Judiciary, Congress cannot increase it either.