Page 85 - ACTL Journal Win24

As Justice Ginsburg observed, 214 years after Alexander Hamilton had made the same point in the Federalist Papers, “[b]ecause the courts control neither the purse nor the sword, their authority ultimately rests on public faith in those who don the robe.” Judicial indepen- dence can only be maintained, she noted, when the public has “confi- dence in the integrity and impartiality” of its judges and “accepts and abides by judicial decisions.”
Judicial independence doesn’t mean a lack of accountability. Certainly, federal judges know we are not free agents. We are all too often re- minded of that by our friends on the courts of appeals who review our decisions. Judges must follow the law and the Constitution, not our own political or philosophical predilections. And we are expected to approach each case with an open mind and render unbiased judgments. Judicial independence is the ability of judges to be free from outside pressure so we can decide cases impartially, without fear or favor. Chief Justice Rehnquist said that “[t]he Constitution protects judicial inde- pendence not to benefit judges, but to promote the rule of law.”
Judges at the state court level, however, are not so insulated. Thir- ty-eight states elect judges, a practice that is virtually unknown to the rest of the world. And, because of the fallout from Supreme Court decisions like Citizens United, many are elected in heavily financed, often vitriolic campaigns. Margaret Marshall, former Chief Justice of the Supreme Judicial Court of Massachusetts, put it this way: “When litigants enter the courtroom hoping their attorney has contributed enough to a judge’s election coffers, we are in trouble, deep trouble.”
Predictably, judges have increasingly become targets for unsatisfied politicians. And, sadly, it appears the drumbeat of this message has reso- nated with the public. A number of recent polls show that the public’s respect for judges, courts, judicial decisions – and ultimately the rule of law – has plummeted throughout the country in recent years. Increasingly, citizens are more distrusting of judges, less likely to believe they act impartially, and more likely to think they are
“just politicians in black robes.” One poll taken in 2013 showed that nearly 90 percent of voters believe that campaign contributions play a role in how state court judges decide cases.
And many people now have begun to believe that federal judges, too, decide cases in accor- dance with their political preferences or party affiliations. Nearly two-thirds of respondents in a Harvard CAPS/Harris poll in 2018 said they thought decisions of federal judges are “influ- enced by politics.”
Let me be clear: I am not suggesting that the work of judges and courts should go unex- amined. Judges make mistakes. Our decisions must always be open to thoughtful, principled
– maybe sometimes harsh – criticism. It comes with the territory.
Criticism of the Judiciary is not new – even from Presidents. Thomas Jefferson accused the courts of being politically motivated, ambitious and subject to outside influences. His proposed solution was to elect federal judges in order to make them directly answerable to the people; he wanted to impeach Supreme Court Justice Sam- uel Chase, who had criticized Jefferson during a grand jury proceeding. Theodore Roosevelt railed against Justice Oliver Wendell Holmes, and President Eisenhower called Chief Justice Earl Warren the biggest mistake he had ever made. President Franklin Roosevelt, of course, threatened to pack the Supreme Court. And during his campaign for re-election, President Bill Clinton called U.S. District Court Judge Harold Baer’s suppression of evidence in a no- torious drug case “grievously wrong” and called on Judge Baer to resign or, if he did not, to face impeachment.
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