In our last two installments, in recognition of the 250th anniversary of the Declaration of Independence, we discussed how that document laid the foundation for the rule of law and the right to trial by jury. In this article – our last before the anniversary – we’ll discuss how the Declaration also laid the foundation for an independent judiciary.
Among the “repeated injuries and usurpations” catalogued by the authors of the Declaration were that the king had “obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers” and “[h]e has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.”
These were not untethered complaints. They reflected the authors’ real-life experiences with arbitrary governance and executive domination.
An independent judiciary
These specific concerns were on the minds of the framers 11 years later when they drafted the Constitution. The framers knew from experience that liberty was always at risk where judges were beholden to those in power for their income and positions.
The most fundamental responsibilities of the judiciary – fairly administering justice, interpreting the laws, protecting individual rights and protecting individuals from governmental overreach – could not be fulfilled if judges were always under the influence of the executive. Judges who owed their salary and tenure in office to an executive would tend to favor the executive instead of upholding the rule of law.
Alexander Hamilton, in his defense of the Constitution in Federalist 78, called judicial independence “a no less excellent barrier to the encroachments and oppressions of the representative body.”
Hamilton recognized that the judiciary often must render unpopular decisions in defense of constitutional principles and law. Such fortitude requires insulation from political retaliation from the legislature as well as from the executive.
The Framers understood that liberty could not survive where judges were beholden to political rulers for their positions or financial security. It was essential to remove from the equation judges’ natural concerns about removal from office and fears regarding economic punishment.
Otherwise, judges would inevitably bend toward security rather than principle or toward the prevailing public opinion rather than the rule of law. For an independent judiciary to fulfill its responsibility, it must be able to ignore public opinion and the political branches of government.
In that respect, the judiciary must be counter-majoritarian.
Office during good behavior
The king had power to remove judges whenever he disagreed with their decisions. The framers withheld this power from the executive and legislative branches.
Article III of the Constitution reads: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.”
Under Article III, judges are protected and will retain their office so long as they’re properly performing their duties. They can only be removed from office by impeachment for improper conduct. Put differently, removal from office does not depend on the whims of whoever holds the executive power or public passions.
Judicial independence, however, does not entail judicial supremacy or lack of accountability. Nor does it mean judges will be perfect creatures who will never make mistakes. The president should nominate, and the Senate should confirm, individuals with the character and fortitude to apply the law impartially and faithfully.
And aside from their personal character, there are restraints on judges’ conduct and decision-making. Federal judges remain bound by the Constitution, statutes passed by Congress, precedent, ethical obligations and appellate review.
Life tenure was never intended to create judges who are above the law. Rather, it was designed to create judges free enough to apply the law impartially and faithfully.
Compensation not dependent on political powers
Experience and history also revealed to the framers that a key method of influencing the judiciary and making it subservient was through judges’ compensation. If the political branches can control how much a judge makes, and if they are free to reduce that amount when dissatisfied with a judge’s decision, then this power threatens judicial independence and the liberty of the people.
Article III addresses this concern: “The Judges, both of the supreme and inferior Courts, ... shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”
The judiciary can function properly only if judges are free to interpret the law without fear of political retaliation or reduction of income. If judges risk suffering a reduction in their salary whenever they rule against those in power or go against popular sentiment, judicial independence becomes a mirage.
Judges would constantly have to weigh how a decision might affect their personal economic wellbeing.
Conclusion
The enduring lesson is clear: liberty depends not only on elections and legislatures but also on judges who are free to administer justice without fear or favor.
The Declaration of Independence illuminated this truth 250 years ago, and the Constitution incorporated it. The framers gave the judiciary the independence necessary to uphold the law and follow the Constitution rather than the crowd. Their wisdom remains indispensable today.
Curtis L. Collier
U.S. district judge
Chair, Eastern District of Tennessee Civics and Outreach Committee
Carrie Brown Stefaniak
Law clerk to the Hon. Curtis L. Collier
Meghna Melkote
Law clerk to the Hon. Curtis L. Collier
Alex Tritell
Law clerk to the Hon. Curtis L. Collier