Bill of Rights in Action

One of the basic tenets of our democracy is that the judiciary should be independent and not subject to political influences. This Bill of Rights in Action focuses on issues related to judicial independence. The first article examines the process of advice and consent for appointments to the federal judiciary, including Supreme Court appointments. The second article explores the role voters should play in state judicial elections. The final article traces the sometimes turbulent history of our independent federal judiciary.

U.S. Government: An Issue of Consent

U.S. Government: Judges and Voters

U.S. History: An Independent Judiciary
 
 

This issue of the Bill of Rights in Action is made possible by a generous grant from the W.M. Keck Foundation.

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An Issue of Consent

The president “shall nominate and by and with the Advice and Consent of the Senate, shall appoint . . . judges of the Supreme Court . . . and other officials of the United States.”

A president makes many appointments. Among the most important are those for justices of the Supreme Court and judges of the lower federal courts. These members of the federal judiciary exercise great power. They interpret the Constitution and determine whether laws violate it. They can overturn state court decisions.

Realizing the importance of an effective judiciary, the framers of the Constitution gave both the president and the Senate a role in selecting judges. This was done to assure that the best people would be picked and that neither the executive nor the legislative branch could control the judiciary. But the Constitution did not define how the Senate should give its “advice and consent” on judicial appointments.

In recent years, a number of controversies have arisen over the appointments of both Supreme Court justices and lower federal judges. Some experts worry that the process has become too political, leading to bitter partisan struggles on ideological grounds. Some fear that, if this trend continues, not only will well-qualified individuals be discouraged from becoming judges, but that the ranks of the federal judiciary will be filled with judges more likely to make decisions on the basis of politics rather than by independent thinking.

It is not surprising that these concerns have arisen in the last three presidencies, those of Ronald Reagan, George Bush, and Bill Clinton. During these administrations, the president was often of a different party than the majority of the Senate.

Supreme Court Battles

The Constitution says nothing about the qualifications of Supreme Court members. Over the years, presidents have looked for different qualities in their court nominees. One of the most important has been the nominee’s legal training and experience. Presidents have also made nominations so that the justices do not all come from one part of the country. A candidate’s religion—and more recently race and sex—have been additional factors considered by presidents trying to achieve a balanced court. Finally, most presidents want to put people on the Supreme Court who share their philosophy about government, the law, and the Constitution. But it is not easy to predict how a person will decide casesonce he or she gets on the Supreme Court.

The president may nominate a person for the Supreme Court for many different reasons. But what about the other side of the Constitutional equation? For what reasons may the Senate reject a Supreme Court nominee? Again, the Constitution is silent.

Shortly after the Constitutional Convention, Alexander Hamilton wrote in No. 76 of The Federalist Papers that there had to be “special and strong reasons for the refusal” of any presidential nominee. On the other hand, Hamilton recognized that the “advice and consent” requirement “would be an excellent check upon a spirit of favoritism in the President.”

Since 1789, when George Washington made his first Supreme Court appointments, the Senate has rejected 28 out of 139 nominations. Most of these rejections came about because the nominee lacked legal ability, was inexperienced, or had committed some unethical act. Some argue that these should be the only reasons for rejecting a Supreme Court nominee. Others, however, reason that senators should also have the freedom to vote against a nominee because of his or her ideas.

On July 1, 1987, President Reagan nominated Robert Bork, a conservative federal appeals court judge, to be an associate justice of the Supreme Court. His nomination raised a storm of controversy in the Senate controlled by the Democrats.

Reagan had already appointed two conservative members of the Supreme Court, and if Bork were confirmed, it would give the conservatives a solid four votes. Since at least one other justice frequently sided with the conservatives, Democrats feared that conservatives would control the nine-member Supreme Court.

Robert Bork, age 60, had excellent legal credentials as a law professor, legal writer, U.S. solicitor general, and federal judge. However, Bork was an advocate of “original intent,” a philosophy about how to interpret the Constitution. This means that he believed the Supreme Court should decide cases strictly according to the words and intent of those who wrote the Constitution in 1787. Bork objected to various Supreme Court decisions that he believed created new rights. From his point of view, this is the job of Congress, the state legislatures, or the constitutional amendment process. For example, Bork had noted in his writings that there is no right of privacy specifically mentioned in the Constitution. He objected to the 1973 Supreme Court ruling that recognized a privacy right for women, which allowed them to choose whether or not to have an abortion. He also questioned prior court decisions on pornography, the exclusionary rule, and prayers in schools.

Liberal senators were enraged over the Bork nomination. Democratic Senator Edward Kennedy protested that, “Robert Bork is wrong on civil rights, wrong on equal rights for women, wrong on the First Amendment and Ronald Reagan is wrong to try to put him on the Supreme Court.”

After a series of grueling hearings before the Senate Judiciary Committee, Robert Bork was rejected as an appointee to the U.S. Supreme Court. Conservatives cried foul, claiming no previous nominee had ever undergone such long and grueling questioning on issues of judicial philosophy. They also charged that liberal interest groups outside of Congress had targeted Bork for defeat because of his conservative beliefs. Senate liberals argued that Bork’s judicial philosophy placed him too far outside the mainstream to be a Supreme Court justice and that they had the right to reject him under their powers of “advice and consent.”

When Justice Thurgood Marshall, the Supreme Court’s only black justice, retired in 1991, it was President George Bush’s turn to nominate a justice. He chose Clarence Thomas, a federal judge and another African-American. Unlike Marshall, Thomas had a very conservative judicial philosophy and his nomination soon ran into trouble.

Anita Hill, a black woman and law professor, accused Thomas of sexually harassing her years before when they had worked together. In televised hearings, she gave a graphic account of her charges, which attacked the character of the nominee. For his part, Thomas refused to answer the committee’s questions about the charges, but likened the hearings to a “high-tech lynching,” a clear reference to a time in America when black men suffered hangings at the hands of white mobs.

At the end of the process, Clarence Thomas was confirmed as a Supreme Court justice, but charges and countercharges over the hearings continued. Conservatives claimed that Thomas had been unfairly attacked because of his judicial viewpoints. Several women’s political groups claimed that the committee was sexist in its treatment of Hill. Liberal Democrats accused the president of cynicism by appointing to the court an African-American conservative, a political viewpoint shared by relatively few blacks.

Battles Over Federal Judges

As president, Bill Clinton has nominated two Supreme Court justices, Ruth Bader Ginsburg in 1993 and Stephen Breyer in 1994. As moderates, both were confirmed by a Democratically controlled Senate and had bipartisan support. But when the Democrats lost control of the Senate to Republicans in 1994, new controversy erupted about the judicial confirmation process.

The process of selecting federal judges begins when the president receives recommendations from senators for candidates from their states. The president then makes nominations, which are forwarded to the Senate. The nominations are referred to the Senate Judiciary Committee, chaired by a member of the majority party. Committee members send the nominees questionnaires about their backgrounds and writings, which are scrutinized by the committee. The nominee may go through one or more hearings where they are questioned by the committee. The committee then makes its recommendations to the full Senate, which votes on the appointment.

When President Bush left office in 1993, well over 100 federal judge’s positions were unfilled. While President Clinton has filled over 150 positions in his term of office, as of March 1998 there were 87 vacancies with 48 nominations pending. Chief Justice William Rehnquist in his annual message on the federal judiciary pointed out that the number of vacancies was hurting the work of the federal courts and urged that they be more quickly filled.

Democrats charge that the reluctance to fill the vacancies is payback for the rejection of Judge Bork by the Democratic Senate during the Reagan years. They also charge that the Senate Judiciary Committee, with its Republican majority, is delaying the appointments of well-qualified and moderate nominees by making overzealous background checks and holding drawn-out hearings. They also complain that Republican leadership has delayed a full Senate vote on some nominees even after the Judiciary Committee has made a recommendation.

Republicans disagree, claiming that the Judiciary Committee is merely exercising its constitutional power of “advice and consent.” They assert that the review process takes a long time to adequately check the backgrounds of nominees and to assure that judges who are selected will not be “activists” but will follow the law and Constitution.

There is little question that conservatives in and out of Congress view the make-up and operations of the federal judiciary as an important issue. In 1995, shortly after Republicans took over Congress, Peter Rusthoven, a conservative legal writer, charged that, “The Clinton Administration and liberal-left interest groups almost certainly will try to use the federal courts to win through judicial activism results unobtainable through the democratic process.” He went on to call for conservatives to reject judicial nominees who demonstrated the “disease of judicial activism.” Also, a number of conservative organizations analyze the records of various judges and lobby against those who are deemed too liberal, just as liberal organizations lobby against those they consider too conservative.

The battles over the Supreme Court and the federal judiciary demonstrate that partisan politics have become a significant factor in the selection process in recent years. This development raises important questions. What factors should be taken into account when selecting a federal judge? Should a nominee be rejected on the basis of his or her political beliefs? What role should outside interest groups play in the process?

An even more important question is: What effect might such partisan politics have on the independence of the judiciary? Will qualified judicial candidates censor their writings or conform their opinions fearing that, if they do not, a federal judgeship is out of the question? Will qualified candidates refuse to even try to become judges rather than face a prolonged and bitter selection process?

The founders of our country saw the importance of having judges make decisions about law and the Constitution free from political pressure. Only time will tell if their wisdom will survive.

For Discussion and Writing

1. Explain how “advice and consent” is an example of “checks and balances.”

2. Why do you think Supreme Court justices and federal judges are appointed for life terms?

3. What effect might partisan politics in selecting federal judicial officers have on an independent judiciary?

4. Do you think judicial nominees should be asked about how they would decide a specific case? Should judicial nominees answer such a question? Why or why not?
 
 

ACTIVITY: Choosing Federal Judicial Officers

1. Which one of the following criteria do you think the U.S. Senate should follow in deciding whether to confirm or reject a U.S. Supreme Court or federal judge nominee? Take a vote in the class on this question and discuss the results.

A. Whoever the president nominates should always be appointed by the Senate.

B. Senators should reject a nominee only because of:

1. inadequate legal training

2. lack of legal experience

3. unethical behavior such as racial or religious prejudice

C. In addition to the reasons listed in part B, senators should have the freedom to vote against a nominee because they disagree with his or her ideas about the Constitution.

For Further Reading

Abraham, Henry J. Justices and Presidents: A Political History of Appointments to the Supreme Court, 2nd ed. New York: Oxford University Press, 1985.

Danelski, David J. A Supreme Court Justice Is Appointed. New York: Random House, 1964.
 

The U.S. Constitution attempts to ensure judicial independence. All federal judges are appointed by the president, confirmed by the U.S. Senate, and serve for life. There is only one way under the Constitution that federal judges can be removed: The U.S. House of Representatives can vote to impeach any federal judge for “treason, bribery or other high crimes or misdemeanors.” The judge is then tried by the Senate. To remove the judge, two-thirds of the Senate must vote to convict. Only 13 federal judges in our history have been impeached by the House and just seven convicted by the Senate. All have been convicted for alleged criminal behavior. None has ever been convicted for making unpopular decisions or for holding an unpopular judicial philosophy.

But most judges in the United States are not members of the federal judiciary. Most belong to the various state courts. And, unlike federal judges, most state judges have to face the voters. The question arises: How can states preserve judicial independence and still make judges accountable to voters?

In many states, voters can recall judges that they believe do not belong on the bench. People opposing a judge must get a certain number of signatures on recall petitions. Then the judge’s name is put on the ballot and voters decide whether they want to retain or recall the judge. If a majority votes to recall the judge, then the judge must be replaced—either by election or appointment, depending on the state.

About 20 states hold direct elections for judges. This means that judges run for office. This allows voters to elect judges in their district instead of the governor appointing every judge. But it also has drawbacks. Judges must raise money for campaigns, often from lawyers who will appear before them. That gives the appearance that lawyers are paying for favoritism. Judicial campaigns in themselves are problematic. Judges can’t make campaign promises that they will rule in a certain way. That would make the judge biased. Bringing judges into the political process can make them seem less neutral in the courtroom.

For these reasons, most states have moved away from direct election of judges. In these states, the governor usually appoints all state appellate court judges and most trial court judges. In some states the governor makes selections from a list prepared by a judicial commission, which searches for the most qualified judicial candidates.

But most of these states still require judges to face voters. Appellate judges usually go on the ballot in the next general election after being appointed. These are called retention elections because voters get to decide whether or not to retain the judges. No one can oppose them. Voters must choose “yes” or “no.” If voters retain them, they serve what remains of their 12-year term of office and then stand for election to a full 12-year term. Trial judges also go before the voters in the next general election after their appointment. But their terms are shorter, typically six years. And in some states, opponents can run against them.

This system has generally shielded judges from politics. It allows judges to serve long terms with a limited degree of accountability to voters. But in recent years, some recall and retention elections have provoked controversy. The late Bernard Witkin, a noted legal scholar, warned:

What we’re seeing is a new way to approach judicial elections, challenging judges’ qualifications on the basis of particular decisions that affect particular groups. . . . If we reach the point where . . . we end up telling the court, “If you don’t do as we want, we’ll remove you,” then the courts won’t be worth saving.

We’ll examine four of these controversial elections—all from California.

Rose Bird and the Death Penalty

In 1977, Democratic Governor Jerry Brown appointed Rose Bird as chief justice of California. Bird was the first woman chief justice and, in fact, the first woman ever appointed to the court. Bird had no judicial experience. She had worked as a public defender and had impressed Brown as head of California’s Department of Agriculture. Although he considered her highly qualified, she barely squeaked by her retention election in 1978, gaining just 51.7 percent of the vote.

That same year, voters overwhelmingly passed a death-penalty initiative. In subsequent years, 59 defendants sentenced under this death-penalty law appealed their cases to the Supreme Court. In each case, Bird voted to overturn the sentence. A majority of the court sided with Bird in all but three of these cases. These decisions drew heavy criticism. Many accused the court of thwarting the will of the people. In 1986, six justices of the Supreme Court, including Bird, faced a retention election. Supporters of the death penalty campaigned to remove three justices—Bird, Joseph Grodin (a former professor of labor law), and Cruz Reynoso (the first Latino on the court). All three had been appointed by Brown. Grodin and Reynoso had only voted to uphold death sentences in three cases.

No justice in California had ever lost a retention election, but this campaign caught fire. A crime victims organization enlisted people across the state to ring doorbells. The California District Attorneys Association opposed the justices. Anti-Bird literature flooded voters’ mailboxes. The campaign gained the support of many in the business community who did not like the justices because of what they considered a pro-consumer bias. Republican Governor George Deukmejian, running for re-election, constantly attacked Bird and the two other justices as “liberals” lacking “impartiality and objectivity.” His Democratic opponent, Tom Bradley, refused to take sides. Bird aired a series of commercials, but refrained from getting involved in a discussion about the death penalty. Her commercials focused on the importance of an independent judiciary. She stated: “Judges with a backbone are a California tradition worth keeping.” Although the three justices had support within the legal community, anti-Bird forces vastly outspent their supporters. All three justices lost, and the newly re-elected Governor Deukmejian appointed three justices in their place.

Ron George and Abortion

With a whole new make-up of justices, the California Supreme Court reconsidered and reversed several rulings that the Bird court had made. Over the years, it upheld death penalty sentences and made numerous pro-business rulings. Just as critics of Bird said her court was too predictably liberal, critics of the new court said it was too predictably conservative.

In 1991, Republican Governor Pete Wilson appointed to the Supreme Court Ron George, a well-respected judge with almost 20 years of judicial experience. In 1996, Wilson named George chief justice. In his brief tenure, George has led the court to more moderate positions on criminal justice and business issues. Then in 1997, the court in a 4–3 vote struck down a state law requiring minors to get parental consent before they get an abortion. The opinion of the court, written by George, stated that the law violated the right to privacy guaranteed by the California Constitution.

The decision provoked great controversy. The previous year the court had upheld the law. But when two justices left the court, the court decided to rehear the case. Republican state Senator Ray Haynes denounced the new decision. He said, “You shouldn’t be playing a political game with a court decision.”

George and Ming Chin, a justice who voted with George, have retention elections in November 1998. A pro-life group is mounting a campaign against both judges. Several Republicans have joined the campaign. Republican gubernatorial candidate Dan Lungren has declined to take sides, but has said he favors a constitutional amendment to overturn the court’s abortion decision.

In February at the state Republican convention, Republicans set up a committee headed by Senator Haynes to decide whether to endorse or oppose the two justices in the traditionally non-partisan election. The committee has said it would wait until the court decided two cases on whether the Boy Scouts could ban gays and atheists from joining. GOP Chairman Michael Shroeder said that these cases would “be an important factor in the [endorsement] decision.” In March, the Supreme Court in unanimous decisions held that the scouts did not have to admit gays or atheists. The lawsuits were based on an antidiscrimination statute that applied only to businesses, and the court ruled that the scouts were not a business. The Republican committee has not yet made its recommendation on George and Ming.

The Los Angeles Times has condemned the anti-George campaign: “What’s at issue here, as it was with Bird, is judicial independence. You don’t have to like a decision to support the principle that judges should not be ousted because they dared to make a decision that is not universally supported.”

George and Ming plan to wage a campaign educating voters about the importance of an independent judiciary. Both are soliciting campaign contributions. George has enlisted Democratic U.S. Senator Dianne Feinstein and former Republican Governor Deukmejian to serve as honorary co-chairs of his campaign.

Joyce Karlin and the Controversial Sentence

Trial court judges have also come under attack for making controversial decisions. In California, the governor appoints most trial judges. Since 1979, the governor must first submit the names of all judicial candidates to the Commission on Judicial Nominees Evaluation. This commission, made up of lawyers and members of the public, evaluates whether the candidates are qualified. Once appointed, judges stand for election every six years and other people can enter their names as candidates.

In 1991, newly appointed Los Angeles Superior Court Judge Joyce Karlin handed down a sentence in a highly charged trial. Defendant Soon Ja Du, a Korean-immigrant grocer, had been convicted of voluntary manslaughter for killing Latasha Harlins, a 15-year-old African-American girl. A store video camera had recorded the two women struggling over a bottle of orange juice. As Harlins started to leave, Du shot her dead.

Karlin, a former prosecutor, could have imposed a 16-year prison term. Instead, she sentenced Du to five years probation and 400 hours of community service. Karlin stated that Du had no criminal record, had acted out of fear, and posed no threat to the community. This sentence outraged many in the African-American community. They saw it as another example of racism in the criminal justice system.

Just two weeks before, another videotape had showed Los Angeles police beating Rodney King, a black motorist pulled over after a high-speed chase. When a jury failed to convict the police officers in late April 1992, Los Angeles erupted in rioting.

In the fall of 1992, Judge Karlin was on the ballot. Three opponents challenged her. The black commu nity rallied behind her opponents. The Los Angeles County Bar Associated rated two of her opponents as “unqualified” and rated Karlin and another opponent as “qualified.” (No one in the race received the bar’s highest rating.) The Los Angeles Times in an editorial endorsed Karlin’s opponent who received the “qualified” rating. The Times explained that Karlin’s “stunningly inapt sentence of . . . Du . . . reflects a lack of fairness impairing her ability to sit as an impartial judge.”

In a letter to the editor, Karlin responded: “If judges have to look over their shoulders as they decide a case; if they have to test the political winds in order to arrive at a politically correct verdict—then the judicial system and the freedoms it guarantees will be destroyed.”

Karlin barely won the election with just 50.7 percent of the vote. But community groups kept the pressure on Karlin. Two recall attempts failed to get enough signatures to qualify. Karlin asked to move from criminal court to juvenile court, and she retired before her first term expired.

Nancy Wieben Stock and the O.J. Custody Case

In 1995, celebrity O.J. Simpson, a former football star, went on trial for murdering his former wife and her friend. The trial drew incredible media attention. Opinion polls showed the public deeply split along racial lines over Simpson’s guilt. Whites overwhelming believed Simpson, a black man, guilty. A majority of blacks believed him not guilty. When the jury acquitted Simpson, many members of the public were outraged.

During the trial, Simpson was held in jail. His two young children lived with his ex-wife’s parents. Following Simpson’s release, he sued for custody of his children. In December 1996, Judge Nancy Wieben Stock granted Simpson custody. This decision drew tremendous criticism.

A civil lawsuit was pending, charging Simpson with wrongful death. In February 1997, a jury found Simpson liable for the deaths and awarded millions of dollars in damages to the families of Simpson’s former wife and friend. Many people thought Wieben Stock should have waited for this civil case to end before awarding custody. Others, however, pointed out that the civil case would probably not end for years due to the appeals process.

Tammy Bruce of Women’s Progress Alliance, a women’s and children’s rights organization, led a recall movement against the judge. She said that Judge Wieben Stock overlooked domestic violence in the Simpson case and another case where Wieben Stock awarded joint custody to a woman who later killed her two children. “The recall process is a way of bringing people back to the system,” Bruce said. “We’re going to use Nancy Wieben Stock as an example. I’ve heard her supporters say she’s a courageous judge, but when do two dead children add up to courage?”

The legal community widely praised Wieben Stock as a judge who applied the law fairly. The president of the California Judges’ Association, William McDonald, stated: “We don’t conduct cases by hearing the evidence in the news media and then say, ‘Let’s conduct a poll’. . . . We hear the facts and apply the law to the facts. And usually, half the people end up unhappy.” McDonald recommended, instead of recalling a judge, that people work to change laws they don’t like.

Bruce’s group failed to get the required signatures for a recall. But Bruce has formed a group called Judge Watch. She said her group will eventually monitor judges throughout the country. She warned that her group will go after judges who make the wrong decisions in child-custody and domestic-abuse cases.

For Discussion and Writing

1. Do you think it’s important to have an independent judiciary? Why or why not?

2. Describe some different methods used to select judges. Which do you think is best?

3. In most states, judges are on the ballot. What do you think voters should consider when voting for judges?

ACTIVITY

In this activity, students will role play voters deciding whether to retain judges.

1. Divide the class into small groups.

2. Students in each group should imagine they are California voters and have the opportunity to vote “yes” or “no” on the following four judges: Rose Bird, Ron George, Joyce Carlin, and Nancy Wieben Stock.

3. Each group should discuss and vote on each judge and prepare reasons for their decisions.

4. The class as a whole should discuss and vote on each judge.

5. Debrief the activity by discussing this question: What are valid reasons for voting for and against judges?
 

Many of these lawsuits ended up in the U.S. Supreme Court led by Chief Justice Melville Weston Fuller. Fuller and a majority of the justices at the time often took a dim view of government regulation and believed that social problems would best be solved by the workings of a free and uncontrolled market. They based many of their court opinions on the due process clause of the 14th Amendment, which says no state shall “deprive any person of life, liberty, or property, without due process of law . . . .” In interpreting this clause, they developed the doctrine of substantive due process.

Under this doctrine, the court would review the substance of governmental laws and would find unconstitutional those laws that interfered with a right to property, or freedom to make contracts, or some other liberty. For example, in 1897 the state of New York passed a labor law forbidding employees of a company from working more than 60 hours in one week. An employer sued claiming that the law violated the Constitution. The Supreme Court, in the case of Lochner v. New York (1905), struck down the law reasoning that there was “no reasonable ground for interfering with the liberty of persons or the right of free contract, by determining the hours of labor.” The court went on to strike down dozens and dozens of progressive-passed laws.

The actions of the Supreme Court raised a storm of controversy. Progressives complained that the court was countering the will of the majority and usurping the powers of the legislature. Others claimed that the court lack judicial restraint and was too eager to declare laws unconstitutional. Yet, the Fuller court’s decisions stood until the 1930s when a later court all but abandoned the doctrine of substantive due process.

Criticism of the role of courts in our society, however, did not end. Ironically, in recent years, conservatives often complain about “activist” judges or fear that judges are legislating from the bench. Some have favored laws that would restrict judicial power by limiting courts’ jurisdiction or judges’ discretion in sentencing. Other groups target judges who render unpopular decisions for removal from office through impeachment, recall, or re-election.

Defenders of the courts worry that political attacks on judges and basic changes to our judicial system could undermine the independence of the judiciary and seriously affect the delicate balance of powers contained in our constitutional system. But how did an independent judiciary come about and what does it mean to have one?

The Third Branch of Government

When the framers of the Constitution arrived in Philadelphia in 1787 to consider a new form of government for the United States, it was a foregone conclusion that it would have three branches. Well-educated students of history, the framers had been influenced by great political thinkers of the past, including the Frenchman Montesquieu. Central to his ideas about government was the concept of separation of powers. He believed that the best way to preserve individual liberty and avoid tyranny was to divide the powers of government into the legislative, executive, and judicial function. In this way, none of the branches would possess all of the power and each would balance one another off.

Those at the Constitutional Convention worried about power too. Fresh from the revolutionary experience, they wanted to make sure that the government had enough power to solve the country’s problems, but not too much power to ride roughshod over the states or individual citizens. Many viewed the judicial branch as, in the words of Alexander Hamilton, “the least dangerous to the political rights of the Constitution” and as a necessary buffer between the powerful presidency and Congress.

Article III of the Constitution states: “The judicial Power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The article goes on to describe what kinds of cases the “judicial Power” would be empowered to hear. Language in the article suggests that the framers wanted the judicial branch to serve an independent role free from political pressure. It stated that judges should “hold their Offices during good Behavior.” This meant judges could only be removed for misconduct. It also stated that judges should receive a salary that could not be reduced during the time they held office. This would assure that judges could not be punished by salary reductions if they made unpopular decisions.

Though the framers created an independent judiciary in Article III, they also included some checks and balances against too much judicial power. The Constitution gave the president the power to appoint judges with the “Advice and Consent of the Senate.” It gave Congress the power to create or eliminate lower federal courts and determine what cases could be appealed to them.

Oddly, the Constitution says nothing about the one job the Supreme Court is most known for today. That is the power to review federal and state laws to determine whether or not they are constitutional. Some scholars have argued that the framers assumed that the Supreme Court would have this power without having to spell it out in the Constitution. They cite, for example, Alexander Hamilton in The Federalist Papers, a series of articles published to support the ratification of the Constitution. He wrote:

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by judges, as fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.

Once the Constitution was ratified, the First Congress of the United States went about establishing the rest of the federal courts under the powers given to it. The Federal Judiciary Act of 1789 laid out a plan that today has grown into an extensive system of federal trial and appeal courts. It also gave federal courts the power to take appeals from state decisions.

The Power of Judicial Review

The judiciary asserted its independence and power when John Marshall became the Supreme Court’s fourth Chief Justice in 1801. The question of whether the court could declare governmental actions unconstitutional had not yet been settled. The opportunity came with the case of Marbury v. Madison in 1803.

In the last hours of his administration, President John Adams had appointed William Marbury as a justice of the peace in the District of Columbia. Unfortunately, Marbury did not receive the appointment papers before Adams left office. The new president, Thomas Jefferson, ordered Secretary of State James Madison not to deliver the appointment to Marbury. Marbury sued to get his appointment, citing the Judiciary Act of 1789. This law had given the Supreme Court the power to order judges and government officials to act.

In his majority opinion in the case, Marshall agreed that Marbury had a right to the appointment. He ruled, however, that the Supreme Court did not have the power to order Madison to deliver the appointment and make it official. The section of the Judiciary Act in question, he determined, gave the Supreme Court a power that it did not have under the Constitution. Since the Constitution was the supreme law of the land, Marshall reasoned, any statute that violated it could not stand and it was the duty of the Supreme Court to overturn the statute. In giving up the power in the Judiciary Act, Marshall carved out for the court a much greater one—the power of judicial review.

Over the years, the court expanded the power of judicial review to cover not only acts of Congress, but executive and administrative orders as well. In time, it also became the power of the lower federal courts and many state courts as well. In many ways, this power was unique to the American experience. Even England, the origin of so many of our political and legal principles, did not give its judges the power to overrule acts of parliament on constitutional grounds.

Judicial review does have limits. Judges can only review laws or other governmental acts that are challenged in court. And once a ruling is made, judges must rely on the other branches of government to enforce them.

While judicial review expanded the power of the judiciary, it also placed judges in a new role. In deciding whether a governmental act meets constitutional standards, judges had to interpret the meaning of the Constitution. Their interpretation, even if based on law and reason, can run contrary to the views of legislators, presidents, or the public. As we saw with the Fuller court and its doctrine of substantive due process, this can lead to political controversy and charges that the court is not interpreting the Constitution, but making its own laws.

Politics and the Judiciary

Ever since the time of John Marshall, the judiciary has been embroiled in political squabbles, some that have threatened its independence. In fact, the famous case of Marbury v. Madison itself began when President Adams tried to appoint a loyal federalist party man to a judgeship, and the new president Jefferson rejected the appointment favoring judges from his own political viewpoint.

President Andrew Jackson quarreled with Chief Justice Marshall over the court’s decision in the case of Worcester v. Georgia. Jackson reportedly said, “Well, John Marshall has made his decision, now let him enforce it.” Though it is likely that Jackson never really used these words, the statement illustrates one of the real limits on judicial power. It must rely on the other branches of government to enforce its rulings.

Democratic President Franklin Roosevelt, frustrated with Supreme Court actions striking down much of his New Deal legislation, proposed a plan to increase the number of justices so that his appointees would be able to outvote the sitting justices. He also once prepared a radio address to tell the American people why he would not comply with a Supreme Court ruling, but at the last minute the court voted in his favor. Roosevelt’s proposed plan to “pack” the Supreme Court set off a firestorm of public criticism, even from his own supporters. Viewed as a naked attack on the independence of the judiciary, no one ever proposed such a strategy again. (Later, the number of Supreme Court Justices was set at nine by federal statute.)

At times the court has also made decisions that have run contrary to the will of Congress. Under the Constitution, Congress has numerous checks that it can use against the judiciary. First, it has control over funding the federal judiciary’s budget. Though it cannot lower judges’ salaries during their terms in office, it can reduce staff, lower operating costs, and withhold money for court-ordered actions. Second, Congress can propose new laws or constitutional amendments to override specific court decisions. Third, it can restrict the kinds of cases that can be appealed to the federal courts. In fact, though unlikely, Congress has the power to completely abolish the lower federal courts.

Courts in Controversy

Over the last five decades, America’s independent judiciary has done much to shape our history. Through its decisions, the court extended voting rights, abolished laws legalizing racial segregation, recognized the rights of those accused of crime, and expanded the rights of free speech and the press. While many of these decisions became accepted by the vast majority of Americans, others have raised ongoing controversy. Court decisions guaranteeing a woman’s right to an abortion, banning prayers and Bible reading in schools, excluding illegally seized evidence in criminal trials, and permitting the burning of the American flag have led to charges that the court has gone too far in interpreting the Constitution.

These decisions have given rise to new calls for limiting the power of the judiciary. In recent years, Congress has passed legislation limiting the discretion federal judges have in determining sentences in criminal trials. Proposals have been made to limit the jurisdiction of federal courts in certain matters. The Senate has also shown its willingness to carefully scrutinize presidential appointments to the Supreme Court and to the lower federal courts under its “advice and consent” power. The trend toward limiting the power of the judiciary can also be seen at the state level.

Some worry that if these trends continue, the delicate balance between the powers of the judiciary and the other branches of government in our system could be undone. Others fear that these trends could compromise judicial independence making judges less likely to make decisions based on law and conscience and more likely to make decisions that serve political ends.

As we have seen, these debates are not new to our history. It is likely that they will continue into the new millennium and beyond.

For Discussion and Writing

1. What evidence in the Constitution suggests that the framers wanted an independent judiciary?

2. What checks against judicial power did the Constitution give Congress?

3. How did the power of judicial review increase the political pressure on judges?

4. Do you agree or disagree with Hamilton’s statement that the judiciary is the “least dangerous” branch of government? Why?
 
 
 

ACTIVITY: Capitol Roundtable

1. Divide the class into triads. Assign each member of the triad one of the following roles: President of the United States, Chief Justice of the United States, Senate Majority Leader. (If any students are left over, designate them Speaker of the House and assign them to a group.)

2. Each member of the triad should review the article, paying particular attention to information about the powers and positions of their branch of government.

3. Each triad should discuss the following questions from the point of view of their role:

a. What dangers to American democracy are there if the courts are too independent.?

b. If not for a strong independent judiciary, how would the rights of minorities be protected and who would make sure that the Constitution is followed?