The Independence of Judges
By David Maxey

Colonial American settlers yearned for a just and equitable system of law and justice, but most of them had a deep distrust of lawyers, courts, and judges.  Ordinary people often experienced the hand of law as oppressive and unfair, dominated as it was by the best positioned people in their communities.  They revered the English trial by jury tradition, but they also harbored the belief that lawyers charged excessive fees and deliberately made law procedures so complicated that the average person could not understand them.  Several colonies even banned lawyers from the courts.  The North Carolina Regulators of the 1760s called lawyers “cursed hungry caterpillars” whose exorbitant fees “will eat out the very bowels of our common-wealth.”

Given the heightened expectations of a new era looming on the horizon in the American Revolutionary era, it is not surprising that many calls went forth for revamping the way the courts operated, the way lawyers’ fees were regulated, the way legal procedures were streamlined, and the manner in which judges were selected and compensated.

This brief essay focuses on how a movement to democratize the appointment and tenure of judges got underway. It was the beginning of a generations-long argument about how judges should be selected and operate in a democratic republic—a discussion that continues to the present day.

Throughout the colonial period the colonies repeatedly protested that the Crown had undermined the independence of the judiciary by refusing to grant judges tenure in office “during good behavior” and to provide them adequate fixed salaries.  The phrase “during good behavior” was taken to mean that judges served without limit in time and were subject to removal from office only through impeachment or perhaps upon being convicted in a judicial proceeding of misbehavior.  The alternative approach of appointing judges to serve “during pleasure” exposed those whose rulings displeased the appointing authority to the sanction of immediate removal from office.  Prior to the Revolution, the Crown enforced this second approach as its invariable policy by instructing royal governors to condition judicial appointments on service during pleasure and by disallowing acts of colonial legislatures that sought to grant judges protected tenure.

In colonial Pennsylvania, the proprietors insisted on their right to appoint judges during pleasure.  The control that members of the Penn family thus exercised over the judiciary became a seriously contested matter.  Benjamin Franklin emphasized the special need to shield judges in Pennsylvania from such pressure because the proprietors, having substantial landed property interests to defend, were constantly in court as litigants.  Nor with the passage of time has the issue of the disinterested ability of judges to decide cases gone away in the United States.  It has, if anything, become more pronounced in the modern era when judges in fully three-quarters of the states are required to run for office and to solicit campaign funds, including contributions from those who may subsequently appear before them in court, either as lawyers representing clients or as parties to a proceeding.   

In the long list of grievances assembled against the King of England, the Declaration of Independence enumerated two in particular that pertained to the judiciary: “He has obstructed the administration of justice by refusing his assent to laws for establishing judiciary powers.  He has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.”  Achieving independence as a government did not, however, ensure an independent judiciary, for many in the patriot generation regarded the exercise of judicial power as a means of contradicting the will of the people, rather than as a bulwark of fundamental liberties. 
Not all judges were trained lawyers, but enough of them were to excite an ever-present popular prejudice against lawyers as practitioners of an arcane art, dedicated to promoting their own interests at the expense of the public interest.  One check on an elitist judiciary was to continue to turn to laymen, at least in part, to staff the courts of primary jurisdiction.  Another was to impose term limits, as the Pennsylvania constitution of 1776 did in prescribing that judges of the Pennsylvania Supreme Court would serve “for seven years only” (although eligible for reappointment at the end of the term).  Still another was to qualify the concept of unlimited tenure, embodied in the notion of serving “during good behavior,” by allowing the legislature to remove judges for misbehavior that fell short of meeting the more exacting standard for an impeachable offense.

Yet, by the time the Constitutional Convention assembled in Philadelphia in 1787, the members of the convention, more than half of whom were lawyers or were trained in the law, had come to the conclusion that the need for a strong central government required at the federal level an independent judiciary.  In Article III of the United States Constitution, the framers, having the earlier experience in mind, provided that “The Judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”  On the face of it, the phrase “during good behaviour” would not appear to guarantee federal judges lifetime tenure, subject to removal only through impeachment, an essentially political process, but Alexander Hamilton, a member of the convention from New York, argued for precisely that protection in The Federalist Nos. 78 and 79 as necessary support for an independent judiciary. 

One early test of the removal power was the impeachment of Justice Samuel Chase, a member of the Supreme Court, who, sitting on circuit and in grand jury charges, had taken Thomas Jefferson severely to task as president and accused his administration of surrendering to “Mobocracy.”  For all of Chase’s glaring faults, his trial before the Senate in 1805 nevertheless seemed to the Federalists a direct attack on the Supreme Court, headed by John Marshall, and on the independence of federal judges.  By a narrow margin, the Senate acquitted Chase of the high crimes and misdemeanors he was charged with committing.   A truce of sorts was thereafter struck; the Republican opponents of Federalist judges recognized that impeachment was too blunt an instrument effectively to use, while the judiciary learned to rein in its political impulses.

In the first half of the nineteenth century, no doubt under the influence of Jeffersonian and Jacksonian democracy, many states moved away from the lifetime appointment of judges toward choosing judges by popular election and often for stated terms.  Although the pattern was by no means uniform, some states began by authorizing the popular election of trial court judges while others experimented with the legislative election of judges.  The movement gradually picked up steam.  New York adopted popular election for all judges in 1846.  Pennsylvania quickly followed with a constitutional amendment in 1850 providing for popular election of all judges including justices of the Pennsylvania Supreme Court, but with the added wrinkle that a justice could be removed from office during his stated term of fifteen years “for any reasonable cause which shall not be sufficient grounds of impeachment … on the address of two-thirds of each branch of the legislature.” 

During Reconstruction following the Civil War, some southern states that had previously embraced the popular election of judges found it expedient to return to the appointive system.  In assessing the trend in the United States toward electing judges, Alexis de Tocqueville, the perceptive French observer of American institutions, predicted in his Democracy in America “fatal consequences” for both an independent judiciary and a stable democratic republic.
Granting federal judges lifetime tenure has not removed the judiciary from politics.  Now more than ever in the past, nominees for a judgeship are subjected to close scrutiny of their judicial philosophy as revealing possible political bias.  When it comes to serving on the Supreme Court of the United States, which has the final word on interpreting the Constitution, the decisions justices reach, often by a closely divided court, have political repercussions. That has been true from John Marshall’s landmark decision in Marbury v. Madison (1803), establishing, to Thomas Jefferson’s complete frustration, the Supreme Court as the ultimate arbiter of constitutional questions, through the Dred Scott decision of the Taney Court in 1857 that upheld slavery as a property right, the unanimous ruling in Brown v. Board of Education (1954) declaring segregation in public schools unconstitutional, and the Court’s entering the political thicket in Florida to decide in Bush v. Gore the presidential election of 2000. 

As long ago as the mid-1830s, it was Tocqueville who also wrote: “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”
Whether one approves that result or not, it does require us to consider once more what the role of the judiciary is in a democratic society, how judges are selected, how long they should serve, and by what process and with what proof of misconduct they may be removed from office.

Questions to consider:
1. Do judges make law?  Do you think they should?  What is the difference between a lawmaker and a lawgiver? 

2. How should judges be selected: by popular vote in a general election; by executive appointment, subject to the approval of a legislative body; by recommendation of a nonpartisan commission?  What are the advantages and disadvantages of each such approach, or any other that you might think of?

3. Are lifetime appointments necessary to ensure an independent judiciary?  Would judges be less independent if they were required to retire after reaching a certain age or after completing a stated term?

4. What kinds of misconduct should lead to the forced removal of a judge from office?  Bribery is a clear case, but can you think of other kinds of judicial misconduct that would warrant removal? 

5. What procedure should be followed in removing a judge from office?  Impeachment puts a judge on trial before a legislative body that usually can convict only upon reaching a super-majority. Would a judicial trial be a fairer approach, with the right of appeal preserved, which is not available in impeachment proceedings?

6. Under what circumstances should a judge not act in a case coming before him or her?  Suppose that a judge sitting on a case in a state supreme court has recently been elected to that position after a hotly contested race in which that judge received substantial campaign funds from a particular donor.  Suppose further that one of the first cases coming before the newly elected justice as a member of the supreme court involves that donor as an interested party.  Should the judge refuse to participate in hearing and deciding that case? 

If your answer is yes, what do you think should happen if the judge refuses to step aside?  Should the judge’s colleagues be able to compel him or her to do so?  Does the judge’s refusal pose a constitutional issue of fundamental fairness for the Supreme Court of the United States to rule on?

Suggested readings: 
 James MacGregor Burns, Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court (New York: Penguin Press, 2009).
 Lawrence M. Friedman, A History of American Law, 2d ed. (New York: Simon & Schuster, 1985).
 G. S. Rowe, Embattled Bench: The Pennsylvania Supreme Court and the Forging of a Democratic Society (Newark, DE: University of Delaware Press, 1994).
 Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-1815 (New York: Oxford University Press, 2009), esp. Chap.11.
 The decision of the United States Supreme Court in Caperton et al. v. A. T. Massey Coal Co., Inc., 556 U.S. (2009), http://www.supremecourtus.gov/opinions/08pdf/08-22.pdf. 
           

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