An Independent Judiciary
Report of the ABA Commission on Separation of Powers and Judicial Independence

The History and Evolution of Judicial Independence

Any study of judicial independence in the United States courts logically begins with the text of the Constitution and a discussion of the meaning ascribed to that text by its framers. Our focus, however, is on the present, not the past, for which reason a conscious effort has been made to keep the historical discussion in this Report brief. The reporter to the Commission offers a more detailed analysis of the historical background in a paper prepared at the Commission's request; a copy of that paper is included as Appendix A to this Report.

A. THE CONSTITUTIONAL TEXT

Article III, Section 1 of the United States Constitution includes three provisions central to the establishment of federal judicial independence.

The independence guaranteed by Article III, Section 1 is offset to an uncertain degree by powers the Constitution grants the political branches to hold the judiciary accountable for its behavior. The Constitution

B. THE ORIGINAL UNDERSTANDING OF JUDICIAL INDEPENDENCE

The provisions for judicial tenure during good behavior and a compensation that could not be diminished were a part of the proposed Constitution from the very beginning and do not appear to have been seriously threatened during either the convention or ratification debates. The founders thus remained steadfast in their support for judicial independence and assumed that life tenure and irreducible salary were the necessary and sufficient means to preserve the independence of the judiciary as an institution, as well as the decisional independence of individual judges.8 At the same time, they did not appear to consider the extent to which judicial independence might be undercut in other ways, such as through political branch manipulation of the judiciary's nonremunerative resources.

The precise language of the judicial power clause was added midway through the convention by the Committee on Detail, although from the outset the delegates supported the establishment of a third judicial branch with exclusive authority over the judicial function. While this clause obviously contributed to the judiciary's independence as a distinct department of government with powers that no other department could exercise, the framers characterized the clause more in terms of its contribution to separation of powers than independence per se, for which reasons it was not discussed alongside the good behavior and compensation clauses in the convention and ratification debates over judicial independence.

Far more volatile than the good behavior, compensation, or judicial power clauses were provisions enabling the political branches to hold the judiciary accountable for its conduct - particularly those governing impeachment, and those empowering Congress to establish the lower federal courts.

With respect to the scope of impeachable conduct, there appears to have been general agreement in the convention and ratification debates that impeachment ought to reach "political" offenses not recognized as conventional crimes at common law. In the Federalist Papers, for example, Hamilton argued that judicial overreaching was not a problem to be feared, because the judges would be unwilling to alienate Congress and risk impeachment:

There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body entrusted with it, while this body as possessed of the means of punishing their presumption by degrading them from their stations.9

As to Congress' power to constitute the lower federal courts, it needs to be emphasized that the Constitution does not establish the lower federal courts but merely authorizes Congress to establish them. Congressional authority to regulate the lower federal courts' practice, procedure, and administration, derives from its power to constitute (or not to constitute) the federal courts, which, when taken in combination with the "necessary and proper" clause, is thought to include the power to regulate the operations of whatever lower courts Congress sees fit to create.

The framers' decision to authorize Congress to establish the lower federal courts, rather than to have the Constitution establish them directly, has thus proved critical to the contemporary balance of power between the first and third branches. Even so, this appears not to have been an intended consequence, so much as a side-effect of a decision having more to do with reducing tension in the relationship between state and federal power. As originally proposed, the Constitution would have established the lower federal courts outright. Many delegates were concerned, however, that federal trial courts would ride roughshod over their state counterparts. As a compromise, the proposed Constitution was amended to empower Congress to establish lower federal courts, with no explicit requirement that it do so. The implications of that compromise for Congress' regulatory authority over the courts were unexplored at the convention, were under-explored in the ratification debates, and were thus left to be pursued by a later generation.

C. THE EVOLUTION OF JUDICIAL INDEPENDENCE

Over two hundred years separate the framers' understanding of judicial independence from ours. Intervening history has had an obvious and inevitable impact on the course of the judiciary's institutional and decisional independence.

1. Decisional Independence The dual goals of judicial independence - to enable the judiciary to make impartial decisions, and to keep the political branches in check - was put to an early test in the landmark case of Marbury v. Madison, decided in 1803.10 In that case, Secretary of State James Madison, acting on President Jefferson's instructions, refused to award Marbury a commission he had received from outgoing President John Adams to serve as a justice of the peace in the District of Columbia. Marbury challenged Madison and Jefferson's actions in an original mandamus petition to the Supreme Court - a procedure authorized by Congress in the Judiciary Act of 1789.

Chief Justice Marshall's opinion in Marbury is sometimes wrongly assumed to be the intellectual genesis of the federal judiciary's power to declare acts of Congress void. That is understandable, given that the opinion cites no outside sources of authority in support of its conclusions. The fact remains, however, that participants in the ratification debates for the most part assumed that the Constitution empowered the judiciary to invalidate unconstitutional laws. What makes Marbury a landmark decision, is that it was the first case in which the judiciary's power to review and void the acts of another branch of the federal government was asserted.

A less adroitly crafted opinion could have "established" the power of judicial review only to have it consigned to oblivion by a resentful Congress and President hell-bent on ignoring a presumptuous court order invalidating a statute or executive action. That did not happen in Marbury. Rather, the Court avoided a direct confrontation with President Jefferson by asserting, without exercising, its authority to declare presidential actions unconstitutional. It could not exercise such authority, the Court explained, because the statute permitting the dispute to come before the Court in an original mandamus petition was itself unconstitutional. By striking down this relatively inconsequential statute, the Court created precedent for its exercise of judicial review over legislative enactments without alienating Congress. The act in question had been passed fourteen years earlier by the Federalists, who were now in the distinct minority in Congress; moreover, the net effect of invalidating the statute was to deprive the Court of jurisdictional power it would otherwise possess, which sapped strength from the argument of detractors that the Court's motive was to accumulate power to itself.

Although Marbury set precedent for the proposition that the federal courts could and should serve as a check on the political branches and majoritarian whim without jeopardizing their independence, such a proposition has never implied immunity from criticism. To the contrary, criticism of the judiciary - including countermajoritarian criticism - has come and gone in cycles, beginning with the founding generation. Throughout that time, unpopular decisions have subjected individual judges to personal attacks and occasional calls for impeachment and removal. Never, however, has a judge been removed from office because of an unpopular decision alone.

In 1805, the House went so far as to impeach Justice Samuel Chase for his procedural rulings in an Alien and Sedition Act case, but the Senate refused to convict. In the view of a noted scholar testifying before the Commission, that set a precedent:

[F]rom the conclusion of the proceedings against Justice Chase to the present it has remained the general view, including of most people in the political branches, that invocation of the impeachment process is not an appropriate response to unpopular judicial decisions.11

Apart from criticizing judges or threatening them with impeachment, the political branches haveoccasionally responded to unpopular judicial decisions by attempting to limit the courts' subject matter jurisdiction or by adjusting the size of the Supreme Court. As with judicial criticism, efforts to strip the courts of jurisdiction have risen and receded in cycles. The same is true of strategic efforts to alter court size, although no serious effort has been made in that direction since President Roosevelt's widely criticized effort to pack the Supreme Court.

2. Institutional Independence
Neither the text of the Constitution nor the convention and ratification debates establishes a firm foundation for the institutional independence of the federal courts. Granted, the framers spoke in sweeping terms of creating three separate and independent branches of government, and of an independent judiciary that could stand up to the political branches and keep them in check. To these ends they vested "the judicial power" in the federal courts, and gave the judges life tenure and a salary that could not be diminished, protections that made decisions like Marbury v. Madison possible. But the framers also gave the political branches considerable regulatory authority over the federal courts - the lower federal courts in particular - and elaborated little on the scope of that authority in the convention and ratification debates.

Twelve years after Congress first exercised its power to establish lower federal courts in the Judiciary Act of 1789, Federalist and lame duck President John Adams, aided by a Federalist and lame duck Congress, passed the Judiciary Act of 1801. Among other things, the Act established sixteen new circuit judgeships, which the President and Senate promptly filled with Federalist judges. The next year, the Jeffersonian Republicans passed legislation eliminating the judgeships established the preceding year.

The congressional debate on the repeal of the 1801 Act brought the underlying institutional judicial independence issues into sharp focus. Those legislators opposed to the repeal argued that Congress' power to establish the lower courts could not be construed to empower Congress to repeal the courts it established, without eviscerating judicial independence. Those favoring the repeal argued, in effect, that Congress could exercise its plenary regulatory authority over the judicial office without running afoul of the constitutional protections afforded judicial office-holders.

The constitutionality of the 1802 repeal was never conclusively resolved by the Supreme Court. The episode nevertheless served to further weaken the judiciary's already tenuous claim to independence as an institution or branch. The point was bluntly made in an 1808 speech on the Senate floor:

The theory of three distinct departments in government is, perhaps, not critically correct; and although it is obvious that the framers of our Constitution proceeded upon this theory in its formation, yet in the practical adjustment of the departments to each other it was found impossible to carry this theory completely into effect. . . . With respect to the word independent, as applicable to the Judiciary, it is not correct, nor justified by the Constitution. This term is borrowed from Great Britain, and by some incorrect apprehension of its meaning there. . . is applied here to the department itself instead of the officers of the department. . . .An independent department of a Government is conceived to be a department furnished with powers to organize itself, and to execute the peculiar functions assigned to it without aid, or in other words, independent of any other department. A moment's attention to the Constitution will show that this is not the Constitutional character of our Judicial department.12

In certain significant respects, the issue of whether the judiciary possessed institutional independence remained unripe throughout the eighteenth and nineteenth century. The judiciary had no institutional identity to speak of, being a decentralized confederation of judges whose sense of "independence" was derived as much from geographical isolation as anything else. And interbranch confrontations that might otherwise have arisen out of the tension between the founders' rhetoric of judicial branch independence and the reality of plenary congressional power to regulate the courts were for the most part averted, due to congressional indifference or informal, ad hoc communication and cooperation between judges and legislators.

By the turn of the twentieth century, however, the needs and size of the federal courts had grown to the point where both Congress and the courts perceived the need to bureaucratize and centralize the judiciary's operations. In 1922, Congress established the Conference of Senior Circuit Judges, later renamed the Judicial Conference of the United States; in 1934, Congress delegated the task of procedural rulemaking to the Supreme Court; and in 1939, Congress established the Administrative Office of the United States Courts. Taken together, these enactments gave rise to the modern federal judiciary as an institution.

Regardless of whether the Constitution required Congress to do so, Congress manifested a high degree of deference to the new, bureaucratized judiciary that it had established. It routinely acted on proposals recommended by the Judicial Conference, and never once interfered with procedural rules promulgated by the Supreme Court from 1934, when the Rules Enabling Act was passed, to 1973. The net effect was to create functional independence for the judiciary as an institution, despite the tenuous foundation for insisting upon it as a constitutional necessity.

Next - Federal Judicial Independence: A Review of Recent Issues and Arguements - A. Decisional Independence Issues

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