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“A stable platform on which to govern was given to us by our founding fathers. They gave us a three-legged stool, whose legs represent the executive, legislative, and judicial branches of government. If we cut down or weaken one of the legs, our system of government will fall.”
— Chief Judge James Carr
United States District Court for the Northern District of Ohio
Two thousand years ago, Roman author and philosopher Cicero said that people decide far more problems by hate, love, lust, rage, sorrow, joy, hope, fear, illusion or some other inward emotion, rather than by reality, authority, legal standard, judicial precedent or statute. As long as men and women propose and pass laws based on emotion, we will need to ensure that there are sufficient checks and balances to protect individual liberty from the might and whim of those in power.
Sometimes the practice of law can seem like a war. Lawyers fight for their clients; the weapons used are evidence, law, and the truth. If our legal system is indeed a battlefield, it is our judges who stand on the front lines. They are exposed in a way that lawyers will never be. They have to interpret the laws of the land and then face criticism from people who feel wronged by those interpretations. In addition, judges’ jobs are not made any easier when they are called on to decipher statutes that are often, at best, as clear as mud.
When there is an unpopular ruling from the bench, the public is quick to call for the ouster of the judge. And if this was not enough, there are members of Congress who are not shy about displaying a demeanor antithetic to the concept of an independent judiciary. At one time or another, attacks on American courts have come from both liberals and conservatives. The most recent attacks, denouncing unpopular decisions and burdening certain judges with the “activist” label, are attempts at intimidation, pure and simple.
Typically it is the liberal judges who have been hit with the “activist” label. However, judicial activism is not solely a characteristic of “liberal” judges. As a recent editorial in the New York Times argues, “Activism is in the eye of the ideologist.” A study of Supreme Court voting patterns by the University of Kentucky College of Law found that conservative justices were actually more likely to strike down federal laws than the liberals. The study therefore reveals that many of the criticisms of liberal judges are unfounded. Nevertheless, whether liberal or conservative, the job of the judiciary is to provide a much needed check on laws passed by Congress.
We may not like a judge’s ruling, and we may not like the judge, but we must make sure that the judiciary remains independent. While Congress has a duty to oversee and the Senate has a duty to confirm judges, neither has a right to dictate how judges rule.
In March of this year, former Supreme Court Justice Sandra Day O’Connor said in a speech at Georgetown University that people who criticize the judiciary challenge the independence of judges and the freedoms of all Americans. She conceded that courts have the power to make presidents, governors, and members of Congress “really angry,” but went on to say, “If we don’t make them mad some of the time, we probably aren’t doing our jobs as judges.” The effectiveness of judges, O’Connor said, is premised on the notion that they will not be subject to retaliation for their judicial acts. However, threats by politicians to impeach judges, strip courts of jurisdiction, and reduce judicial budgets – if motivated by judicial rulings with which the politicians disagree – amount to exactly such retaliation.
Without an independent judiciary to protect individual rights from the other branches of government, those rights and privileges would amount to nothing. In a speech to the Ohio State Bar Association, Chief Justice Thomas J. Moyer, of the Supreme Court of Ohio, said that impartiality and fairness are “the bedrock principles from which all courts in America are created. An impartial court is the only institution that can prevent the majority from infringing on the rights of the minority.”
A judiciary beholden to political leaders might not have been able to rule in Gideon v. Wainwright (1963) that indigent criminal defendants must be provided legal representation free of charge. A judiciary lacking independence might not have been able to require the President to turn over audiotapes of Oval Office conversations (U.S. v. Nixon, 1974), or to provide United States citizens detained as enemy combatants at least some modicum of due process rights (Hamdi v. Rumsfeld, 2004). And judges serving at the discretion of legislators or executives, whether state or federal, might have been reluctant to effect profound change by ruling in Brown v. Board of Education (1954) that separate schools are inherently unequal.
As members of the criminal defense bar, we must make it our mission to protect the three-legged stool. We must support our judiciary and speak out against those who are attempting to undermine its independence.
