The Federalist Society

Reflections on Judicial Independence

Federalism & Separation of Powers Practice Group Newsletter - Volume 2, Issue 1, Spring 1998

May 1, 1998

Jefferson B. Sessions III

Before I address judicial independence, I want to recognize the tremendous contribution that the Federalist Society has made to the conservative legal movement. In a relatively short period of time, the Federalist Society has become influential in setting the national legal agenda. Because of the Federalist Society, no longer is the legal community dominated by liberal and self-interested "professional associations." The Federalist Society has provided us an alternative voice, and for that, I am ever thankful.

In addition, I would like to recognize the society’s outstanding Board of Directors, particularly my distinguished Senate colleagues Orrin Hatch and Spencer Abraham, and of course, The Honorable Judge Robert Bork. It has been a real pleasure to serve with Senators Hatch and Abraham on the Senate Judiciary Committee. And there is one more Federalist Society board member that I want to recognize, and that is General Meese. Ed Meese was a friend of the Federalist Society from the very beginning, and he continues to contribute to the society to this very day. General Meese has made great personal sacrifices to advance judicial restraint and conservative principles, and all of us here owe him a great debt.

There has been much talk of late on the subject of "judicial independence." As you probably know, Attorney General Reno gave a speech last summer before the annual American Bar Association convention on what she perceives as "threats" to judicial independence. According to Ms. Reno, in the last year, "our national debate has been infused with a kind of criticism that does not seek to argue the rightness of an issue, but to undermine the very credibility of the judiciary." President Clinton joined the fray when he devoted his entire September 27, 1997 radio address to alleged Republican attacks on the federal judiciary. President Clinton stated that "under the pretense of preventing so-called judicial activism, they’ve taken aim at the very independence our Founders sought to protect. . . . The intimidation, the delay, the shrill voices must stop so the unbroken legacy of our strong, independent judiciary can continue for generations to come."

Not to be outdone, the American Bar Association recently issued a report on the independence of the judiciary. The ABA report openly warns about the dangers of criticizing the judiciary. The report recommends that state and local bar associations develop ways to defend federal judges from "misleading criticism." In one entertaining passage, the report states:

When federal judges are victimized by false or misleading criticism, they – like state judges – need help in correcting a factually inaccurate record so that the public is not led to believe that the targeted judge committed an injustice.

I must admit that I love that passage – "when federal judges are victimized." Moreover, in his last column as president of the ABA, Lee Cooper melodramatically wrote that "it is my view that the biggest challenge to the profession and the justice system is the continuing attack upon our federal judiciary." According to Cooper, the biggest challenge to the legal profession is not an out-of-control tort system, or the terrible image lawyers have in America, but instead attacks on the federal judiciary. Cooper concludes that "it is the critics who are activists, not the judges."

This afternoon, I would like to respond to those who believe that criticism of judges undermines judicial independence. My main response to President Clinton and General Reno is a simple one: The only real threat to judicial independence is judicial activism. Activism and activism alone is responsible for recent attacks on the federal judiciary. As Archibald Cox recently wrote, "a judge whose decisions are influenced by politics is putting the independence of the judiciary at risk."

Although there are countless activist federal court decisions, I would like to highlight three issues to demonstrate how some federal judges have undermined judicial independence. While these cases are by no means an exhaustive list of bad decisions, I believe that they are particularly relevant to this topic.

Abortion

Perhaps no two cases have done more damage to the judiciary than Roe v. Wade, 410 U.S. 113 (1973), and its 1992 reaffirmance in Planned Parenthood v. Casey, 505 U.S. 833 (1992). In Roe, the Court "discovered" a constitutional right to abortion lurking in the Due Process Clause of the Fourteenth Amendment. For the first 184 years of our Nation’s existence, abortion was decided in the democratic process, with a great deal less strife than attends the issue today. In 1973, however, the Supreme Court usurped the issue and prevented America’s political institutions from prohibiting abortion in all but the most extreme circumstances. In one fell swoop, the Court legalized what many Americans consider to be murder.

In 1992, the Supreme Court reaffirmed Roe in Casey. When the Court had the chance to return one of the most important issues of our day to the democratic process, it failed miserably. In a passage that has come to symbolize an unaccountable and out-of-touch judiciary, the Casey majority stated that abortion must be a constitutional right in order "to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life." In response to this inscrutable decision, Justice Scalia wrote what sums up my sentiments here tonight: "[A]gainst the Court are the twin facts that the American people love democracy and the American people are not fools."

Term Limits

Another area where the Court has undermined its independence is the 1995 decision in U.S. Term Limits v. Thornton, 514 U.S. 779 (1995). In Thornton, the Supreme Court ruled that state-imposed term limits on members of Congress were unconstitutional. In order to invalidate state-imposed term limits, the Court had to adopt an entirely new theory of state sovereignty – namely that the powers reserved to the States were not all powers not delegated to the federal government, but something less. Justice Stevens wrote for the Court that "[i]n the absence of any constitutional delegation to the States of power to add qualifications to those enumerated in the Constitution, such a power does not exist."

In a brilliant dissent, Justice Clarence Thomas showed how the majority got it exactly backwards. To quote Justice Thomas, "where the Constitution does not speak either expressly or by necessary implication, the Federal Government lacks that power and the States enjoy it." Of course, nowhere does the Constitution prohibit the States from enacting term limits.

In the Thornton decision, the Supreme Court basically crushed the most important and popular political reform movement in decades. Poll after poll shows that the American people support term limits by nearly 80 percent. Nevertheless, the Supreme Court said that the Constitution must be amended before States can enact term limits on their congressional representatives.

Racial Preferences

Lest I criticize only the Supreme Court, I will now mention one lower court decision. Last year, the citizens of California amended their state constitution by initiative to prohibit racial and gender discrimination and preferences by the State of California. Sadly, the ink was barely dry on Proposition 209 before federal District Judge Thelton Henderson blocked its implementation, stating that Proposition 209 was likely unconstitutional.

Judge Henderson’s order would have been laughable if the subject were not so important. His order was based on the bankrupt premise that racial preferences are constitutionally required. As we all know, the Constitution prohibits racial preferences. Although reasonable people may differ about the wisdom of preferences, no competent lawyer could conclude that Proposition 209 is unconstitutional, especially given the decisions in Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), and Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995). Judge Henderson’s order was nothing more than a power grab against a democratic decision with which he personally disagreed.

Fortunately, this case has taken a turn for the better. A unanimous panel of the Ninth Circuit Court of Appeals reversed Judge Henderson’s order and lifted the injunction. In upholding the California Civil Rights Initiative, Judge O’Scannlain of the Ninth Circuit made my point precisely when he wrote: "A system which permits one judge to block with the stroke of a pen what 4,736,180 state residents voted to enact as law tests the integrity of our constitutional democracy."

I believe that these three decisions involving abortion, term limits, and racial preferences illustrate how the federal courts have permanently alienated millions of Americans. It is little wonder that a 1995 survey revealed that only 8 percent of those surveyed had a great deal of confidence in the judicial system. Without these and other activists decisions, congressional leaders like Tom DeLay would not call for judicial impeachment. Without these and other activist decisions, theologians like Father Richard John Neuhaus would not question whether judicial activism has replaced our constitutional order. Judge Learned Hand predicted long ago that undemocratic federal judges would cause a backlash and thereby threaten their own independence. When the backlash comes, said Hand, "the judiciary will then cease to be independent, and its independence will be well lost."

What Is Judicial Independence?

Finally, I would like to discuss what judicial independence really is, and what it is not. Article III of the Constitution provides federal judges with two safeguards for independence: life tenure during "good behavior" and undiminished compensation. Judge Learned Hand illustrated what formidable safeguards these are when he asked one of his law clerks: "To whom am I responsible? No one can fire me. No one can dock my pay. . . . Everyone should be responsible to someone."

Judicial independence is not, as some would suggest, having federal judges run state prisons, mental institutions, and school districts. Before Congress enacted the Prison Litigation Reform Act in 1996, Pub.L. No. 104-134, 110 Stat. 1321, state prisons in 40 states were under federal court orders. Federal judges micro-managed every detail of these state prisons. When Congress finally restricted the judicial administration of prisons, critics complained that the Prison Litigation Reform Act threatened the "independence" of the judiciary. Habeas corpus reform in 1996 elicited the same charges. Anthony Lewis of the New York Times warned last year that "there has been a period of court-stripping legislation unlike anything in memory." According to Lewis, laws like the prison litigation and habeas corpus reforms, "have in common a terrible theme: An individual may have been treated unlawfully, but we’ll prevent him from doing anything about it." The ABA report on judicial independence mentioned earlier also charges that the prison litigation and habeas corpus reforms "impose severe limits on the authority of the federal courts," thereby undermining judicial independence.

Of course, these critics misunderstand the nature of judicial independence. Article III states that the judicial power of the United States shall be vested in the Supreme Court, "and in such inferior courts as the Congress may from time to time ordain and establish." In other words, the lower federal courts are not even constitutionally required; Congress can establish them or abolish them as it sees fit. In fact, the lower federal courts did not have general federal question jurisdiction until 1875. My point is this: It does not threaten judicial independence for Congress to restrict the excesses of the lower federal courts. Congress – not the Constitution – created these courts, and Congress can regulate these courts. Provided that federal judges are afforded life tenure during good behavior and undiminished compensation, judicial independence is not threatened.

In reality, federal courts are threatening our political institutions, not vice-versa. The federal courts have usurped one political issue after another. Abortion, homosexual rights, school busing, racial preferences, term limits, criminal procedure. The list goes on and on. But the courts want it both ways. They want to decide all the important political issues of the day, but when they are criticized for making political, activist decisions, they say, "we are the judiciary, criticism undermines public confidence in us and endangers our independence." That, quite simply, is ridiculous.

Perhaps some comparisons will bring some much needed perspective to this issue. The Left’s complaint about judicial criticism are ahistorical, to say the least. Criticism of the federal judiciary has existed throughout America’s history, and much of the criticism has been far more severe than anything in recent years. For example, Thomas Jefferson and his political allies came very close to impeaching Supreme Court Justice Samuel Chase. While Chase was an oppressive, mean-spirited, and terrible judge, he did not commit a high crime or misdemeanor. Nevertheless, after a month-long impeachment trial in 1805, the Senate voted 19-15 to convict Chase, just below the two-thirds vote needed to convict. "The judiciary of the United States," said Jefferson, "is the subtle corps of sappers and miners constantly working underground to undermine the foundations of our confederate fabric."

Teddy Roosevelt also struggled against judicial activism. Roosevelt didn’t hesitate to criticize decisions he did not like. "I may not know much about the law," wrote Roosevelt, "but I do know one can put the fear of God into judges." And of course, we are all familiar with FDR’s Court-packing plan. After the Lochner Supreme Court struck down every major piece of New Deal legislation, President Roosevelt introduced legislation in 1937 to add six new Justices to the Supreme Court. After exhaustive hearings and debate, the plan was barely defeated in the Senate. However, the Supreme Court, obviously affected by FDR’s relentless pressure, immediately changed direction and upheld virtually every piece of New Deal legislation. Some of the legislation, moreover, was identical to legislation the Court had struck down only a few years earlier. As pundits said at the time, "a switch in time saved nine." Compared to these and other episodes, recent criticisms pose no threat to the independence of the judiciary. Furthermore, in my opinion, FDR’s pressure on the Court was not necessarily a bad thing. When federal courts flagrantly disregard the Constitution, a little pressure is justified.

I believe a modern comparison to other nations is even more helpful in showing just how exaggerated are the complaints about judicial criticism in this country. For example, a judge in Chile was recently dismissed after refusing to dismiss a case against military officers implicated in a kidnapping. In another case, a Chilean judge was suspended at half salary for publicizing torture practices of the state police. Scores of Colombian judges have been murdered for attempting to enforce the law. If anyone extradites somebody, that's a death sentence. They offer them a choice, death or taking a bribe, but you don't order an extradition from Colombia. They've murdered many judges there. This lack of judicial independence is not limited to Latin America. In Russia, dismal pay and poor security have so undermined judicial independence and competence that some western companies settle disputes through arbitration outside of Russia to avoid Russian judges. Amazingly, Russian judges are paid so poorly that as of this July, one-third of the judgeships in Moscow are vacant for lack of applicants. And security is so bad that last year, one Russian judge was murdered in the courthouse after she fined a street vendor $7. Obviously, such poor compensation and security protection invite corruption and intimidation, which greatly erode judicial independence.

These are examples of real threats to judicial independence. Thankfully, it is different here in America. Federal judges in America serve for life, with undiminished pay, in some of the most prestigious and respected positions in our society. I believe that President Clinton and other liberals who complain about threats to judicial independence should consider how judges were criticized in the past and how they are treated compared to judges in other countries. If they do so, I believe they will see that judicial independence is not threatened by congressional regulation or harsh criticism. Finally, I hope that the federal judiciary will realize that it holds the key to its independence. When judges obey the Constitution and respect the democratic process, they are immune from any lasting criticism, and most importantly, the country is better off. Thank you.

*Jefferson Sessions is a United States Senator from Alabama. This lecture was presented to the Federalist Society on October 17, 1997. The text of the lecture has been revised and edited to fit this format.


The Federalist Society