Freedom and Independent Courts

Judge Dale A. Kimball
United States District Court

May 1, 2003

My main hope today is to be able to convey a few coherent thoughts and to utter a couple of complete sentences. I took a jury verdict just before midnight last night after a difficult trial that took a week and a half. I may not be at my best today.

I am delighted on this Law Day to speak to you. I am discussing the topic "Celebrate Your Freedom: Independent Courts Protect Our Liberties." I did not select this topic; it was assigned to me. Not surprisingly, however, it is a topic in which I have a keen interest. I should also state at the outset that I believe the assertion contained in the second half of the topic's title. Independent courts do - or should - protect our liberties.

Let me briefly trace the history of the development of the notion of an "independent" judiciary. The Roman Law created a form of judicial independence in a system set up by Justinian between about 528 and 534 A.D. With the fall of the Roman Empire and what we call the Dark Ages that followed, the independent courts were basically suspended. In England, the Romans held power during the early centuries A.D., but the Roman judges left England, probably in the 5th century. A variety of legal systems followed. They included trials by ordeal and laws made by successive kings. For the last week and a half, I have been in a trial by ordeal. Not until the 17th century in England was there something like a system of law somewhat independent of government.

With this English history in mind, the educated colonists seemed to be sensitive to the necessity, in a free society, of an independent judiciary. Among the grievances leveled at the King of Great Britain in the 1776 Declaration of Independence were these: "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." As Thomas Jefferson recognized, if judges are at the complete will of another branch of government for tenure and pay, their decisions will be improperly influenced. Questions will not be "What does the Constitution mandate?," "What do the statutes mean?," and "What do the case precedents require?," but rather, maybe instead, "Will I be fired?," "Will my pay be abolished or diminished?," or "Will this decision be unpopular?"

In 1780, in Massachusetts, now a Commonwealth, then a colony in rebellion, the citizens decided that they should have a written constitution. A constitutional convention was held. As stated by Benjamin Kaplan, a former justice of the Supreme Judicial Court of Massachusetts, "by a prodigy of good fortune, John Adams was the chief convention draftsman." The draft went to towns and villages throughout the Commonwealth. Nearly 200 communities sent comments in. The constitution was approved by a two-thirds vote of the public.

The Massachusetts constitution established a Supreme Judicial Court and other courts whose judges were to be appointed by the governor, with the consent of his council, to serve as long as they maintained good behavior. The constitution stated that the purpose was that judges should be "as free, impartial and independent as the lot of humanity will admit."

Prior ideas about judicial independence influenced Adams and others, but as Justice Kaplan said, "their particular combination and expression in the [Massachusetts] constitution were a mighty invention." Professor Samuel Eliot Morison called the idea of judicial independence as expressed in the Massachusetts constitution "one of John Adams's profoundest conceptions."

By the time of the debates and adoption of the federal constitution the principle of judicial independence was almost a given. In The Federalist No. 78 Alexander Hamilton spends most of his time and energy discussing judicial review, a related principle to judicial independence which I will address momentarily. Hamilton does offer the following in The Federalist No. 78 regarding judicial independence:

The Federal Constitution was, of course, adopted with Article III thereof providing for an independent judiciary, with judges to hold their office during good behavior. All states have set up a form of an independent judiciary in their constitutional framework. Most have not followed the federal model of judges serving during good behavior. The worst, such as Texas, have contested political elections for judges. Many have some form of retention procedure which does provide, in my view, for a healthy dose of judicial independence. Utah is in this category. Article VIII of the Utah Constitution establishes a separate, independent judicial branch of government. Since 1780, Massachusetts judges have been appointed for life by the Governor with the consent of the Governor's Council. John Adams still holds sway there. However, in 1972 in Massachusetts, a mandatory retirement age of 70 was imposed by constitutional amendment.

There was some talk during this past session of the Utah Legislature of creating a committee of senators that would rule on the fitness of every judge who is up for a retention election. The theory was, as I understand it, that the committee would have had authority to keep a state judge off the retention ballot, effectively removing him or her from office. In commenting on this possible development, a Deseret News editorial of February 18, 2003 stated: "Obviously, this committee would be tempted to eliminate judges who had issued unpopular rulings, regardless of how sound those rulings may be. They would also be tempted to use a judge's political leanings as a guide." The editorial went on to suggest that "perhaps all new lawmakers should be given mandatory training on the role of an independent judiciary in a free society. Banana republics and dictatorships allow politics to dominate their courts. Utah . . . should tread around that ground very carefully." An editorial in The Salt Lake Tribune on March 11, 2003 pointed out that "the legislature and the courts are co-equal branches of government, with offsetting powers." The legislature did not, to its credit, adopt the proposal. I am not even sure it was seriously considered.

Speaking of banana republics and independent judiciaries brings to mind some experiences of my older son. He is a lawyer for Nokia with responsibilities in Mexico, Central and South America. There are a few places where he travels where there are no independent courts and no rights and processes associated therewith. If the executive wants someone removed (a potentially broad term) it is done. The courts are the political tools of the dictator or what passes for Parliaments. These are not good or free systems of government. He tells me constantly that most Americans are unaware of the blessings of their independent judiciaries. As Utah Supreme Court Chief Justice Christine Durham said on February 24th of this year, "The system would break down without independent judges." She also contrasted our system to countries where judges are sometimes assassinated: "In this country we protect and try to insulate our judiciaries." I want to go on record as being against the assassination of judges.

I stated earlier that the concept of judicial review was a principle related to judicial independence. On February 24, 2003, we (or many of us) celebrated the 200th anniversary of the case of Marbury v. Madison. This case has been called by Chief Justice William Rehnquist "the most famous case ever decided by the United States Supreme Court." The Court in that case, speaking through the great Chief Justice John Marshall, recognized the power of judicial review to determine a law's compliance with the constitution. The Marbury Court did not create judicial review out of whole cloth. It is clear that this concept was implicit in the separation of powers doctrine.

For example, George Wythe, scholar, teacher and patriot (and law mentor and teacher to John Marshall and Thomas Jefferson, among others) had spoken about and taught the concept. Further, judicial review had been adopted under the Virginia constitution six years before Virginia ratified the federal constitution. Wythe led both the successful effort to create Virginia's constitution and the successful effort to ratify the federal constitution in Virginia. It is clear that Wythe and others expected a judicial check on the other branches of the federal government.

In addition, The Federalist No. 78 explained the principle of judicial review in some detail. Hamilton explained that with the existence of a written constitution which prohibits legislative authority from doing certain things such as passing ex-post facto laws, bills of attainder, or abridging freedom of speech or press (and many other things), such prohibitions and limitations can be preserved in practice no other way than through courts. It is the court's duty "to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing."

There are written constitutions all over the world, many of which have little practical meaning in protecting freedom when independent courts lack the power to protect the stated fundamental rights from the exercise of unfettered legislative or executive power. How else can the fundamental constitutional rights of the people, particularly minorities, be protected? To again quote The Federalist No. 78: "The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a 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."

In Marbury, then, Chief Justice John Marshall was expounding well-known contemporary principles when he stated that "it is emphatically the province and duty of the judicial department to say what the law is." It is no overstatement to proclaim, as have both Chief Justice William Rehnquist and Associate Justice Ruth Bader Ginsburg, that independent courts and the power of judges to pronounce on the constitutionality of government action constitute the jewel in our Constitution's crown.

Later state constitutions explicitly recognized and adopted judicial review. The Utah constitution, Article VIII, Section 2, for instance, says, "The court shall not declare any law unconstitutional under this constitution or the constitution of the United States, except on the concurrence of a majority of all justices of the Supreme Court." That seems to me a very reasonable proposition and a reasonable limitation on judicial review. Of course, if the requisite procedures are followed and sufficient majorities obtained, the federal constitution or any state constitution can be amended and even theretofore fundamental rights altered or adjusted.

It should be noted, in passing, that almost all courts, most of the time, affirm the constitutionality of the acts of the other branches of government and of other governments as when, for instance, a federal court holds in a particular case that a branch of a state or municipal government did act constitutionally. This generally affirming role of the courts, I believe, provides confidence in all levels of government. And when occasionally acts are held invalid and unconstitutional, there is underscored the meaning and life of written and protected freedoms that can be celebrated and need protection by an independent judiciary.

I have heard and read of federal and state legislative leaders stating several times that on occasion the freedom of the people has been safeguarded by judges doing their duty and giving meaning and life to those rights reserved in the constitution. In that sense, judicial review gives meaning to the rule of law. The idea of an independent judiciary coupled with the role of the judiciary to enforce constitutional rights truly makes real the protection of liberties. It is easier to accept the concept of independent courts when they deal with and pass on only private disputes relating to property, torts or contracts. When the independent courts occasionally check what other branches of governments do, the principle of an independent judiciary becomes problematic for some.

So why do we permit (even encourage) this anti-majoritarian branch of government? Are there potential abuses in such a system? What are the potential problems? What are the competing realities that cure and manage and restrict the difficulties?

There are, of course, potential abuses in a system of judicial independence and judicial review. The Dred Scott decision in 1857, by the Supreme Court, held that the Missouri Compromise of 1820 was unconstitutional. That compromise had prohibited slavery in the territories north of Missouri. The court basically said that Congress could not eliminate slavery. The Thirteenth Amendment overruled Dred Scott. Constitutional amendment, difficult as it may be, is a way to work and correct judicial abuse.

Judges may, and occasionally do no doubt, decide cases based on their preferences rather than on what is their good faith understanding of the constitution, governing statutes and precedents. When this happens, some dislocation and difficulty can occur. It still is true, though, that usually the courts affirm and give deference to the actions of the legislative and executive branches of government.

Consider how judges and courts are constrained and restrained. In the first instance, judges are nominated by the executive and confirmed by one branch of the legislature. There has to be a real case or controversy before a court can hear a case. Judges do not decide things out of thin air. With the exception of supreme courts exercising discretionary appellate jurisdiction, judges do not decide what cases to decide. Parties bring specific and concrete cases before them. They must have standing. This means they must have a personal stake in the outcome in order to assure a concrete adverseness which sharpens and shapes the issues. An injury must be shown, there must be a causal connection between the injury and the conduct complained of and it must be likely that the injury will be redressed by a favorable decision. These requirements limit the cases a court can hear.

To some extent, also, legislatures are empowered, within constitutional limits to determine the jurisdiction of courts - what cases a court can hear. Further, there is an elaborate system of appellate jurisdiction and rights of appeal. All of the foregoing limit and circumscribe what courts can hear and do. There truly are ample safeguards built into the system.

Consider the alternatives. If judges' tenure and pay could be altered as punishment for a decision considered unwise by the executive or legislative branches of government, then as The Federalist No. 78 pointed out, there is absolutely no reason to have an independent judiciary. You should then have courts subservient to the other branches of government, unable to check in any meaningful way the occasional unconstitutional excesses of the other branches, which is the reason to have an independent judiciary in the first instance.

In short and in sum, the founders knew what they were about.

Judicial review and judicial independence have had a large hand in making us what we are. Because of judicial independence and judicial review, ABA President Alfred P. Carlton, Jr. recently stated that our third branch of government was the envy of the world. We can and will continue to be able to enjoy our liberties and celebrate our freedoms in large part because of our belief and reliance on the principles and rationale underlying judicial independence.

EDITOR'S NOTE: The remarks from above were made by Judge Kimball on May 1, 2003, at the annual Law Day Luncheon sponsored by the Utah State Bar's Young Lawyers Division.

Copyright 2003