Justice Breyer and Judicial Independence

I had the opportunity to listen to Justice Stephen Breyer of the U.S. Supreme Court lecture tonight on judicial independence.  He was in Hawaii (for his first time ever) as a Jurist-in-Residence at the University of Hawaii Law School.  His presentation was all-too brief but the lecture (held at the Hawaii Supreme Court) was quite engaging.

Justice Breyer began his talk noting that more and more countries are trying to emulate the American judiciary model with the fundamental aspect of the success of this system being: judicial independence.

So, what is judicial independence?  He said that every judge knows what it means, some lawyers do, and, for the most part, most people in the public had no idea.  So, is there a problem with judicial independence, he asked.

He thought there was.  The signs of a problem: 1) elected judges being forced to raise campaign funds to be re-elected; 2) state initiatives to punish judges for their decisions (citing South Dakota and Colorado); and 3) a disturbing trend in public opinion polls suggesting that more Americans believe judges make decisions, not based on what the law says, but what they personally want to do.

So, how then do you ensure judicial independence?  He thought that pay raises and tenure, while not the core of the solution, helped.  But, he said the essence of judicial independence is when judges decide based on their feeling that they won't be subject to external pressure.

To accomplish this feeling, the judiciary needed to mount a public relations campaign.  He asks "how do you get the support of the public who, for the most part, just does not know or care about this issue?"

He noted that the American judicial system does keep costs in the grocery store down, while ensuring a wide array of products (presumably by giving competing businesses fair tribunals to resolve their disputes).  He pointed out three cases which further demonstrated how the courts impact every American's life.  First, the Cherokee tribe case from the 1830's where the Supreme Court held that the State of Georgia had wrongfully taken land from the Cherokee tribe.  In response, Justice Breyer noted, President Andrew Jackson said, "[Chief Justice] Marshall made decision, he can enforce it."  Thereafter, Jackson sent in federal troops to evict the Cherokees and force march them to Oklahoma.

His second case:  One hundred and thirty years later, when the Supreme Court stated that integration in education was the law of the land, the courts were presumably facing the same problem for they had no troops, no budget, no way to compel compliance with the law.  But, President Eisenhower did not follow the Jackson model and sent the 101st Airborne Division to compel the integration of the schools.

For his final case, Justice Breyer said, "you pick one....Bush v. Gore, abortion, school prayer."  All were difficult cases and of course, judges aren't always right. BUT, he pointed out, we ALL still follow it and that is the protection that we Americans enjoy.  Americans, through two hundred years of independent judiciary, have a collective understanding of what the rule of law means. 

Justice Breyer concluded by saying that it wasn't enough that judges and attorneys understand judicial independence, but our challenge is to ensure that the next generation understands what it is and why it is important.

He took three questions.  The first was on Hawaii's mandatory retirement law for judges (at age 70).  He noted that the Supreme Court had too dealt with aged justices by self-policing.

The second question was about the role that the judicial confirmation process had on judicial independence.  Surprisingly, he responded that he thought it important for the American public to see judicial candidates going through the democratic process.  The confirmation procedure had popular elements for the Senators asked questions that the American public would ask.  He thought it the best way to ensure the American public confidence in judiciary.

The final question was on cameras in the courtroom, specifically the U.S. Supreme Court.  He was not against the idea, but had concerns:  1) oral arguments (which would be the only thing televised) are only about 5% of what the Supreme Court does, with the rest being written opinions; 2) how do you handle criminal cases; 3) what is the danger if the public reacts too much; 4) society likes to have its judges be relatively anonymous so that they can pronounce decisions and be the voice of the law.  He suggested that only after seeing a serious study of the sociological impacts of television cameras in courtrooms (noting that his concerns were the trial courtrooms of America) in states that had television cameras in the courtroom that he would be willing to decide the issue.

Comments

[Gideon Kanner]

Let's see now. Justice Breyer thinks all's well with the courts, and it's just that the Great Unwashed doesn't understand "judicial independence," which means "We can do anything we damn please without being held accountable."

Sorry, Your Honor. It won't wash. If you want to be a mover and shaker and public policy maker, the Great Unwashed has every legitimate right to have a say in your moving and shaking. As Judge Alex Kozinski once put it: "When we act like politicians, we will be treated like politicians."

So perhaps Justice Breyer and friends may want to try observing the other "I-word" -- judicial impartiality. It's a tough one. But who knows? It might work.

[Mark]

Thanks for the comments, Professor. My question, unasked because of the crowd, was to what extent is public criticism of decisions seen by judges/justices as an impingement on judicial independence. Certainly, the judiciary cannot expect the public to abide without public criticism of its decisions. Criticism must be acceptable in a democracy, but perhaps not reductions of the judiciary's budget? Certainly when courts leap into the fray, think Schiavo case or Bush v. Gore, individual judges cannot think they escape any criticism for their decisions.