Before getting to the main discussion right away, there is a little information needed to be provided in order to grasp a better understanding of what is going to be achieved throughout this article.
Judiciary, being one of the three separate branches of government in the American federal system, plays a very significant role in the mechanism of American domestic polity. This is established through a safeguard Constitution which leaves no doubt regarding the official powers invested in the judicial body. It is the Article III of the United States Constitution which gives the right to the judiciary’s, including United States district courts & specialized courts (tax, bankruptcy, …), United States circuit courts of appeals (13 appellate courts), and Supreme Court, existence. The federal judges, according to the Constitution, has to be appointed by the President “by and with the advice and consent of the Senate”, then they, “both of the supreme and inferior Courts, shall hold their Offices during good behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office”. [1]
Though the Great Founders of the United States set out to erect a separate system of government to prevent a concentrated powerful government, from which they apparently declared independence on July 4, 1776, based on the theories of Montesquieu, Hobbs, Locke and Newton, they, on the other hand, genuinely established an intertwined relationship based on checks and balances through which all the three branches can keep an eye on the other two’s function. This is also believed to prevent corruption; therefore, help reach maximum function of all three branches eventually.
This article is going to focus on the Judiciary branch’s supposed independence and try out to conclude whether it is really independent after all or not.
Among Judiciary’s duties are: making laws naming some certain acts as crimes, setting fixed punishment for each crime and hence criminals who have committed those crimes, and interpreting the United States Constitution based on the emerging needs of the society and the elapse of time. Definitely all the above mentioned functions of the judicial body needs a clear cut conscience since they are all fragile matters that can easily alter or manipulate lives of thousands of people and even change their destiny. So, in a unique political environment like the United States, where two profoundly strong political parties exist through a strictly vying interaction as well as different lobbies or interest groups and a notably influential media, the key trait which has to be carved in a judge’s soul is his/her nonpartisanship and impartiality. Consequently judges have to independent in the way that they can’t take sides of parties or interest groups or others that have interest in the outcome of the judge’s decision. The only touchstone influencing a judge’s verdict has to be law and law only. The other renderings of the judiciary’s independence, according to The World Bank Group- Legal Institution of the Market economy, are: “judicial decisions once rendered, are respected”, “the third characteristic of judicial independence is that the judiciary is free from interference.”[2]
According to Honorable Stephen G. Breyer, an Associate Justice of the U.S. Supreme Court appointed by Democratic President Bill Clinton in 1994 says: “we must keep in mind that judicial independence is a means toward a strong judicial institution. The strong judicial institution is a means toward securing the basic goals of people: human liberty and a reasonable level of prosperity.” [3]
Moreover there is a reason behind devising an independent judiciary according to Honorable Anthony M. Kennedy “The law makes a promise—neutrality. If the promise gets broken, the law as we know it ceases to exist. All that’s left is the dictate of a tyrant, or perhaps a mob.”[4]
This is seemingly inspired from the Declaration of Independence jotted down two centuries ago which was a reaction to tyranny that led Americans to come up with their own way of government. So the basis is to be protected:
“Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States”[5].
Now, having all that mentioned on the necessity and reasons of why there should be an independent judiciary, this paper will discuss whether it is really independent or not.
As we all know, The President can appoint anyone he desires as a judge, who are appointed for life of course and are to leave the office upon death, resignation, or impeachment, to the federal court with and by the consult and consent of Congress’ American Bar Association. Also, in some states, judges are to be elected, sometime on a partisan ballot, or on a nonpartisan ballot. This element initially is in itself reason enough to reject the independence of judicial body. The other; however, which stems from the very basic doctrine of separation of powers, is that in a separated system, branches control each other through checks and balances. Eventually there are checks over judiciary that enables a higher hand over its power. This again rejects independence.
Moreover, based on the regulation provided by the Constitution a judge has to conduct “good behavior”, putting aside the fact that “good behavior” has to be defined. Nonetheless, there is a restriction to what a judge can do meaning that in some cases they can easily be pushed out of the office through an impeachment and replaced. As till now 13 federal judges have been impeached [6].
References:
1. Article III of the United States Constitution, Section I. Available at: http://en.wikipedia.org/wiki/Independence_of_the_judiciary, Retrieved at: 12/4/2009.
2. The World Bank Group – Legal Institutions of the Market Economy. Judicial Independence: What It Is, How It Can Be Measured, Why It Occurs.
Available at: http://www1.worldbank.org/publicsector/legal/judicialindependence.htm 2001, Retrieved at: 12/2/2009
3. Honorable Stephen G. Breyer. “Comment: Liberty, Prosperity, and a Strong Judicial Institution,” in Judicial Independence and Accountability, Law and Contemporary Problems, Volume 61, Number 3 (Summer1998).
Available at: http://www.law.duke.edu/shell/cite.pl?61+Law+&+Contemp.+Probs.+3+(Summer+1998), Retrieved at: 12/2/2009.
4. Honorable Anthony M. Kennedy. Address to American Bar Association symposium, Bulwarks of the Republic: Judicial Independence and Accountability in the American System of Justice held December 4-5, 1998, Philadelphia, Pennsylvania. Available at: www.abanet.org/judind/downloads/jidef4-9-02.pdf, Retrieved at: 12/2/2009.
5. Declaration of Independence. Available at: http://www.ushistory.org/declaration/document/index.htm,Retrieved at: 12/1/2009
6. http://en.wikipedia.org/wiki/Independence_of_the_judiciary,Retrieved at: 12/4/2009.
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