THE UNDERMINING OF THE INDEPENDENCE OF OUR JUDICIARY

There is widespread acknowledgement that fair and impartial courts and judges are essential to public trust in our court system and our democracy. A key role of the judiciary is to ensure that the legislative and executive branches of government do not overstep their authority or violate individuals’ rights. This is one of the key checks and balances that is part of the Constitution. Members of the legislative and executive branches should respect judges’ independence even when they disagree with their decisions.

In recent years, the judicial appointment process at the federal and state levels, elections of judges in some states, and court decisions themselves have gotten increasingly politicized. This is not a positive trend for our democracy and the politicization of the judiciary only seems to be accelerating.

President Trump on multiple occasions has criticized judicial decisions and demeaned individual judges. This is unprecedented and unhealthy for our courts and our democracy.

The President’s attacks on the judiciary seem to have emboldened others in their efforts to politicize our judicial system. In 2018, at least 14 states are considering at least 42 legislative proposals that would reduce the independence of judges and court systems. These proposals include giving legislators more control over the selection of judges, putting political or financial pressure on judges to rule the “right” way, and giving legislatures the power to override court decisions, including deciding the constitutionality of laws they themselves wrote. [1]

The attacks on judicial independence are coming from right-wing, wealthy interests in efforts to:

  • Have unlimited ability to sell guns and ammunition, as well as to carry guns, (Note: This is not really about Second Amendment rights; it’s about the ability of gun manufacturers to sell guns and ammunition to make big profits.)
  • Limit women’s ability to make decisions about their reproductive health,
  • Limit the rights of LGBTQ individuals,
  • Block every citizen’s right to an equal voice in our democracy through 1) restrictions on voting rights, 2) gerrymandered voting districts, and 3) unlimited campaign funding by wealthy special interests,
  • Expand the use of the death penalty and maintain an inequitable criminal justice system,
  • Block funding for public schools that ensures that every child receives a free and appropriate education as required by state constitutions,
  • Block fair taxes and fair employment and business practices necessary to stop spiraling economic inequality, and
  • Promote policies based on religious beliefs rather than the interests of the public.

For example, in Pennsylvania, legislators unhappy with a state Supreme Court ruling that a Republican gerrymandering of congressional districts was illegal, at first refused to comply with the court’s order and then threatened to remove the judges who had ruled against them. [2]

In Washington state, where judges are elected, legislators have proposed requiring analysis of how much each state Supreme Court decision will cost taxpayers. In decisions about individuals’ rights, cost should not be a factor and using the cost of a judge’s decisions should not be a factor in an election campaign. In North Carolina, legislators have proposed giving themselves more power in the selection of judges and in gerrymandering judicial districts. They have also proposed making judges run for election every two years. In Iowa, legislators unhappy with a judge’s decision to ban guns from courthouses have threatened to cut judges’ salaries and to require the courts to pay rent, using their control of the purse strings to try to affect judges’ rulings.

The impartiality and integrity of our state courts is critical because they handle the vast majority of criminal and civil cases in the U.S. For example, 94% of felony convictions occur in state courts, including 99% of rape cases and 98% of murder cases. In criminal cases, there is compelling evidence that the pressures of election campaigns and negative campaign ads affect judicial decision-making. (See this previous post for more detail.)

In summary, judges are facing unprecedented challenges to their ability to deliver fair, impartial justice free from partisan pressure. Not only are partisan elected officials trying to put their thumbs on the scales of justice, but in addition the rapid increase in spending on judicial campaigns has exacerbated the challenges to judicial fairness and integrity. (See this previous post for more detail.) We need to oppose efforts to undermine the independence of the judiciary whenever and wherever they arise.

We need to support policies and practices that protect the independence of the judiciary. Two key policies related to the selection of judges are for states to use an effective, non-partisan appointment process or to have effective regulation of judicial elections and spending on them. Partial public financing systems, which match individuals’ small contributions with public money, can legally limit spending and the size of contributions. These are important steps in controlling the influence of campaign money on judicial decisions. (See this previous post for more detail.)

Eroding the checks and balances between our branches of government, and in particular the courts’ independence in making decisions fundamental to our democratic principles, is unpatriotic and antithetical to the Constitution. Increasing politicization of the courts is likely to further increase divisive partisanship. Reduced independence and power in the courts could be extremely difficult to reverse after the fact; this may well be a snowball that will roll uncontrollably downhill. Politicizing the judiciary would make its decisions subject to the whims of the current political environment rather than based on long-term constitutional, legal, and democratic principles.

[1]      Brennan Center for Justice, 2/6/18, “Legislative assaults on courts – 2018,” New York University Law School, (https://www.brennancenter.org/analysis/legislative-assaults-state-courts-2018)

[2]      Keith, D., 2/21/18, “Democracy unchecked: Trump spurs state lawmakers to curb judges’ powers,” The American Prospect (http://prospect.org/article/democracy-unchecked-trump-spurs-state-lawmakers-curb-judges%E2%80%99-powers)

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2 comments

  1. John Lippitt · · Reply

    Carolyn, Thanks for the comment. It does seem that all the precedents and values that have underpinned our democracy seem to be outright ignored by the current administration and that those in Congress are sitting on their hands in terms of enforcing standards of ethics etc. I’m interested in the book you mention. If you own it, please bring it with you this summer so I can take a look at it. Grandkids were great and Nick and Amelia were only 5 people away from the alter at the wedding. You saw them if you watched the wedding. They had a great time! Haven’t seen RBG yet. Hi to Rich. Hope to see you soon!

  2. carolyn fleiss · · Reply

    So true and so eloquent, John. It is increasingly concerning to see what appears to be an unraveling of our “sacred” checks and balances. It is a wonder how seemingly quickly long held values seem to lose the backing of those changes with upholding them. I am reading a book right now that speaks to why and how people make decisions that are not based on precedent or facts. Political Tribes Group Instinct and the Fate of Nations by Amy Chua. It’s and easy read but troubling to me. On another note, how was the baby sitting and your kid’s experience at the Royal Wedding? Hopefully we’ll have a chance to get together before long. We were up at camp briefly on Saturday to do a few things but didn’t stay long. I’m sure you’ve seen or intend to see RBG. Hi to Alice. Carolyn Sent from my iPad

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